IN THE sUPERIoR C0URT 0F THE STATE 0F DELAWARE
ASHLEY GESTWICKI,
Pl_aintiff,

V. C.A. NO. Nl6C-lO-0()2 JRJ

PINE WOODS, INC.,
Defendant/Third-Party Plaintiff,
v.

STATE OF DELAWARE,
DEPARTMENT OF
TRANSPORTATION,

\/\/\./\/\/\./\/\./\./\./\/\/\/\/\_/\/V

Third-Party Defendant.
Date Submitted: April 17, 2017
Date Decided: Junc 15, 2017
ORDER
Upon consideration of '1`hird-Party Defendant State of Delaware,
Department of Transportation’S Motion for Summary Juolgment,l Defendant/Third-
Party Plaintiff Pine Woods, Inc.’s Response,2 and Plaintiff Ashley Gestwicki’S

Responsef IT APPEARS THAT:

 

l State of Delaware, Department 0f Transportation’s Motion for Sumrnary Judglnent Pursuant to
Superior Court Civil Rule 56 (“DelDOT’S Mot. Surnm. J”) (Trans. ID. 60355610).

2 Defendant/Third-Party Plaintiff Pine Woods, Inc.’s Response in Opposition to State of
Delaware’S Motion for Summary Judgment (“Pine Woods’ Resp.”) (Trans. ID. 60481246).

3 Plaintiff Ashley Gestwicki’s Answer to State of Delaware’s Motion for Summary Judgment
(“Gestwicki’s Resp.”) (Trans. ID. 60483463).

l. On October 2, 2016, Plaintiff Ashley GestWicki (“Gestwicki”) filed suit
against Defendant/Third-Party Plaintiff Pine Woods, lnc. (“Pinc Woods”), alleging
that she sustained injuries When she tripped and fell over a metal post protruding
from the ground on property owned and maintained by Pine Woods.4 Gestwicki
alleges that Pine Woods Was negligent in maintaining the metal post.5

2. Pine Woods filed a Third-Party Complaint against Third-Party Defendant
State of Delavvare, Department of Transportation (“DelDOT”), alleging that
DelDOT owned, maintained, and exercised control over the premises Where the
incident occurred.6

3. Summary judgment is appropriate Where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of laW.7 The
moving party bears the burden of establishing the non-existence of material issues
of fact.8 Once the moving party meets its burden, the burden shifts to the non-
moving party to establish the existence of material issues of fact.9

4. DelDOT filed the instant Motion, arguing that Pine Woods’ third-party

claims against it are barred by the doctrine of sovereign immunity.10 DelDOT

 

4 complaint 111 4_6 (Trans. ID. 59637718).

51¢1.111[10_11.

6 Answer of Pine Woods, Inc. to Complaint With Affirmative Defenses and Third Party
Complaint 1 28 (Trans. ID. 59895205).

7 super. ct. civ. R. 56(¢).

8 Moore v. Sizemore, 405 A.Zd 679, 680 (Del. 1979).

9 Id. at 681.

10 DelDoT’s Mot. summ. J. jj 5.

submitted an affidavit from the Delaware Insurance Coverage Administrator,
which attests that DelDOT has not, through the state insurance coverage program
or any other commercial insurance, insured against the type of risk encompassed in
the instant action, and therefore, has not waived sovereign immunity.ll

5. Pine Woods does not contest DelDOT’s sovereign immunity defense, but
argues that summary judgment is not proper because there are still issues of
material fact remaining12 The issue of fact identified by Pine Woods is the
ownership of the property where Gestwicki was injured While the ownership of
the property is an issue of fact, it is not one that, if disputed, would preclude
summary judgment as to DelDOT. Therefore, Pine Woods has offered no
argument that would preclude summary judgment as to DchOT.

6. Rather than offer a basis to defeat summary judgment, Pine Woods asks
the Court to interpret DelDOT’s Motion as providing “judicial notice” that
DchOT owned and controlled the property at issue.13 In the alternative, Pine
Woods requests that DelDOT withdraw its Motion and admit that the incident

happened on state property, whereupon Pine Woods would withdraw its

 

ll Ia'. 1111 6-7. “Sovercign immunity is a bar to liability claims against the State unless it is
waived by the State.” Caraballo v. Del. Dep’t of Corr., 2001 WL 312453, at *l (Del. Super.
Mar. 22, 2001) (citing Del. Const. art. I, § 9). The State has waived the defense of sovereign
immunity “as to any risk or loss that is covered by the state insurance coverage program.”
18 Del. C. § 6511.

12 Pine Woods’ Resp. 11 3. Gestwicki takes no position as to DelDOT’s Motion. Gestwicki’s
Resp. 1] 5.

13 Pine Woods’ Resp. 11 4.

Third-Party Complaint against DelDOT.14

7. DelDOT has made no admission regarding the ownership of the property,
and thc Court sees no reason to take such “judicial notice.” By asserting sovereign
immunity_which Pine Woods has not challenged_DelDOT has a complete
defense to the action and is entitled to summary judgment As to Pine Woods’
alternative request that DelDOT withdraw its Motion and take a position on the
ownership of the property by answering the Third-Party Complaint, this request is
not appropriate Any such questions of fact are properly resolved through
discovery, not through a response to a motion for summary judgment

8. For the foregoing reasons, DelDOT’s Motion for Summary Judgment is

GRANTED. The instant action should go forward as between Gestwicki and Pine

 

 

Woods.
IT IS SO ORDERED.
M/m'de\lw§§ident Judge
14 ld.

