IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SABRA A. HORVAT,
Plaintiff
C.A. N0.: Sl6C-03-003 RFS

v.
STATE OF DELAWARE OFFICE

OF MANAGEMENT & BUDGET, et al.,
Defendants.

MEMORANDUM OPINION

Upon Defendants’ Motion for Summary Judgment. Granted.

Date Submitted: August 30, 2017
Date Decided: October 30, 2017

William D. Flethcher, Esq., Schmittinger & Rodriguez, P.A., 414 S. State Street, P.O.
Box 497, Dover, Delaware 19903, Attorney for Plaintiff

Joseph C. Handlon, Esq., Lynn A. Kelly, Esq., Deputy Attorneys General, Carvel State
Offlce Building, 820 N. French Street, Wilrnington, Delaware 19801, Attorneys for Defendants

STOKES, J.

I. INTRODUCTION

This matter is presently before the Court on the motion of the Defendants, the State of
Delaware Office of Management and Budget, et al.(“Defendants” or “the State”), for summary
judgment The Plaintiff, Sabra A. Horvat (“Plaintiff’ or “Horvat”), opposes the Motion. For the
foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED.

II. FACTS

On March 4, 2014, Horvat reported for jury duty at the Kent County Courthouse. She parked
in the Kent County Courthouse Parking Lot on Water Street in Dover. This parking lot had been
specified in the jury summons as one of the three areas available to the jury pool for parking. On
March 3, 2014, the Dover area had experienced freezing rain and heavy snowfall, which
accumulated to around seven inches of snow. By the time Plaintiff parked in the parking lot, it
had been cleared. However, some icy patches remained. As Plaintiff walked from her vehicle to
the Courthouse, she slipped and fell on a patch of ice and snow located at the entrance of the
parking lot. Consequently, Plaintiff Sustained Serious fractures to her lower left extremity. She
underwent two separate surgical procedures to repair her injuries, but she is left with a moderate
permanent impairment of her injured leg. Plaintiff’s medical expenses exceed $84,902.44.

III. PARTIES’ CONTENTIONS

The parties agree that the State of Delaware adheres to the following direction: “Personnel
shall perform all necessary tasks to ensure that the assigned areas are clear of snow and ice in a
timely manner.” They also agree that this work is performed by insured vehicles that plow the
snow and salt the pavement after the snow has been cleared. When the task is completed, the
pavement should be clear of all snow and ice. lt is further undisputed that there Was an icy patch

remaining in the Kent County Courthouse Parking Lot after the clearing duties had been

completed, and that this hazard was the cause of Horvat’s fall and injuries. However, the parties
disagree as to whether Defendants can be held liable for this failure as well as Plaintiff s
resulting injuries. The States advances three theories under which it is immune from suit:
sovereign immunity, the public duty doctrine, and the State Tort Claims Act.

A. Sovereign Immunity

Under the doctrine of sovereign immunity, the State cannot be sued without its consent.l
According to 18 Del. C. § 6511, “The defense of sovereignty is waived and cannot and will not
be asserted as to any risk or loss covered by the state insurance coverage program, whether same
be covered by commercially procured insurance or by self-insurance. . . .”2 Defendants claim that,
because the State of Delaware does not have insurance for this loss, it cannot be held liable for
Plaintiff s injuries. Plaintiff claims that the State’s automobile insurance policy covers the loss,
thereby waiving immunity. The insurance policy in question reads in pertinent part: “We will
pay all sums the insured legally must pay as damages because of bodily injury or property
damage to which insurance applies, caused by an auto accident and resulting from the
ownership, maintenance or use of a covered vehicle.”3 While Defendants do acknowledge there
is an insurance policy, they argue that it would only cover losses incurred directly from the use
of the insured vehicle, in this case the snow plow. They assert that the plow did not cause the
patch of ice in the parking lot, so there is no insurance coverage. In the absence of insurance
coverage, the doctrine of sovereign immunity would apply, relieving the State of any liability.

Conversely, Plaintiff asserts that the use of the snow plow caused the icy patch and her
resultant injury. In her Response in Opposition to Defendants’ Motion for Summary Judgment

she writes, “. . .it is the careless and unreasonable use of a snowplow vehicle and a salt spreader

 

l Zak v. GPMInvestments, LLC, 2013 WL 1859344, at *2 (Del. Super. Ct. Apr. 30, 2013).
2 l8 Del.C. § 6511.
3 Defs.’ Mot. Summ. J. 2 (emphasis in original).

vehicle that allowed untreated snow and ice to remain on parking lot surface and that condition
caused Plaintiff to slip and fall on March 4, 2014. The State’s sovereign immunity defense is
waived. . ..”4 At the crux of this issue is the following question: did the State’s use of an insured
snowplow to clear the parking lot constitute “use” as contemplated by the insurance policy,
bringing it under the coverage of the policy and waiving sovereign immunity?

B. Public Duty Doctrine

In order to recover under the theory of negligence, Plaintiff would have to show, among
other things, that Defendants owed her a duty of care. According to the public duty doctrine,
government actors typically only owe a duty to the public at large, not to an individual person.5
However, there are exceptions to this rule. For instance, the special relationship exception
covers situations where a closer than usual relationship is found between the state actor and the
injured individual. Four factors must be met to establish this exception: (l) the assumption of an
affirmative duty by the state actor to act on behalf of the injured party; (2) knowledge on the part
of the state actor that its action or inaction could lead to harm; (3) some form of direct contact
between the state actor and the injured party; and (4) the injured party’s justifiable reliance on
the affirmative undertaking of the state actor.6

Thus, Defendants argue that when clearing the snow they were under no duty to Plaintiff
beyond the duty owed to the public at large. Therefore, Defendants assert that they cannot be
held liable for Plaintiffs fall and injuries. Further, Defendants assert that the special relationship
exception would not apply in this case. According to the State, because the roads and parking lot

were plowed for the benefit of the general public, not the Plaintiff individually, she could not

 

4 Pl.’s Resp. Opp’n Defs.’ Mot. Summ. J. 3.
5 Zak v. GPMInvestments, LLC, 2013 WL 1859344, at *5 (Del. Super. Ct. Apr. 30, 2013).

6 Id.

have relied on the undertaking by Defendants. Thus, there was no special relationship between
the State and Horvat.

On the other hand, Plaintiff argues that “All landowners/possessors have a duty of care owed
their invitees to maintain their property in a safe condition...,” which includes the duty to
remove snow and ice from a parking lot.7 This duty does “not change simply because the
landowner in question is a governmental entity rather than a private person or entity.”8
Additionally, Horvat points out that the Kent County Courthouse Parking Lot was not open to
the general public, but only open to those visiting the Courthouse.

Moreover, Horvat argues that the special relationship exception would apply here. She
argues that, because she was compelled to appear at the Kent County Courthouse for jury duty
and because the Kent County Courthouse Parking Lot was specifically identified in the summons
as an available place to park, the State undertook an affirmative duty to make this area safe.
Additionally, she claims the jury summons and juror call-in telephone line constituted direct
contact between the State and herself, which allowed her to justifiably rely on Defendants’
clearing of the parking lot. The State counters by arguing that the parking lot had not been
“designated” for Plaintiff s use. The jury summons listed several available parking areas,
including other parking lots and surrounding street parking According to the State, it was only
executing its duty to provide juries for criminal and civil trials.

C. State Tort Claims Act

The State Tort Claims Act (“STCA”) “immunizes the state, its agencies, and employees from

claims of negligence unless Plaintiff can show one of the following: (1) performance of a

 

7 Id.
H Id.

ministerial duty; (2) gross negligence; or (3) bad faith.”9 According to Defendants, Plaintiff
cannot show any of the above circumstances However, Horvat contends that plowing the
parking lot was a ministerial duty; therefore, the STCA does not insulate Defendants from
liability. She claims that, “Some Delaware Courts have held conduct is more likely ministerial
when there are hard and fast rules as to the course of conduct or where a person performs in a
prescribed manner without regard to his own judgment concerning the act to be done.”10 Here,
Plaintiff contends that there is no room for the employee(s) clearing the area to exercise
discretion, and the method of removal, i.e., State-owned snowplows and salting vehicles, is
already specified, so the snow clearing is a ministerial act.

In response, Defendants cite Minnesota case law holding that a snowplow operator must
“assess the existing conditions and rely on [their] judgment to determine the best time and
manner for plowing. These decisions involve sufficient discretion to fall within that protection
of official immunity.”ll Defendants note that the cited case dealt with street plowing, not
parking lot plowing, but they see no consequential distinction. Thus, they believe that snow
clearing must be considered discretionary rather than ministerial, and that the STCA would
insulate the State from liability.

IV. STANDARD OF REVIEW

The Court may grant summary judgment if “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to summary judgment

as a matter of law.”12 The moving party bears the initial burden of showing no material issues of

 

9 Defs.’ Mot. Summ. J. 5.

10 Pl.’s Resp. Opp’n Defs.’ Mot Summ. J. 3-4 (internal citations omitted),
ll Defs.’ Reply Supp. Mot. Summ. J. 6.

12 Moore v. Sizemo)'e, 405 A.2d 679, 680 (Del. 1979).

fact are present.13 If the moving party properly supports their motion, the burden then shifts to
the non-moving party to rebut the contention that no material issues of fact exist.14 In
considering a motion for summary judgment, the Court must review the record in a light most
favorable to the non-moving party.15 The Delaware Supreme Court illustrates the parameters of
granting summary judgment as follows:
Under no circumstances, however, will summary judgment be granted when, from
the evidence produced, there is a reasonable indication that a material fact is in
dispute. Nor will summary judgment be granted if, upon an examination of all the
facts, it seems desirable to inquire thoroughly into them in order to clarify the
application of the law to the circumstances.16
V. ANALYSIS
A. Sovereign Immunity
Here, the central question is whether the State had insurance coverage for the harm caused.
This question only can be answered in the affirmative if the injury Was caused by the
maintenance, ownership, or use of the snowplow in question, as such circumstances would have
brought Plaintiff`s injury within the scope of the automobile insurance policy. The facts do not
support the contention that the use of the snowplow caused Plaintiffs injuries. Therefore,
Plaintiff is precluded from bringing her claim.
The case Zak v. GPM Investments, LLC contains a similar fact pattern, but can be
distinguished by a key fact. In Zak, a driver was struck and killed by another driver as she pulled

out of a convenience store parking lot.17 Three tall snow mounds had been piled in the shoulder

which obstructed the view of the decedent-driver, causing her to pull out in front of oncoming

 

13 Id. at 681.

14 Merrill v. Crothall-American, Inc., 606 A.2d 96, 99 (Del. 1992).

15 Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).

16 Id. at 468.

17 Zak v. GPMInvestments, LLC, 2013 WL 1859344, at *1 (Del. Super. Ct. Apr. 30, 2013).

7

traffic.18 A DelDOT snowplow had been used to clear the roads and caused the accumulation of
snow in the shoulder.19 Therefore, decedent’s estate sought to sue the State for negligently
clearing the snow and obstructing the decedent’s view of traffic, which led to her deadly
accident20 The same insurance coverage issue was addressed; the insurance policy analyzed in
Zak contained the same language as the policy in the case at bar.21

The Zak Court found that the “use” of the snowplow could have contributed to the decedent’s

accident, at least in part. The Court wrote,

Here, when viewing the facts in the light most favorable to the non-moving
parties (i.e., the plaintiffs), l find that the accident may have been at least partially
caused by the “use” of the DelDOT snowplow. This is so, because the DelDOT
vehicle caused the snow to pile into three mounds that were between 30 and 60
inches in height near the exit of the gas station. Arguably, the snow mounds
impaired the decedent’s line of si ght, and thus, potentially contributed to the cause
of the accident. Because the DelDOT snowplow “allegedly produce[d] or was the
instrument of the harm” and the plaintiffs’ injuries resulted from the “use” of that
vehicle, l find that the plaintiffs have shown that sovereign immunity has been
waived by the State in this case.22

In the instant case, there is no similar showing that the “use” of the snowplow caused
Plaintiff to slip and fall. A distinction can be drawn here between the affirmative role that the
Zak snowplow played in causing view-obstructing snow mounds and the role that the snowplow
here played in failing to completely remove a patch of ice from the parking lot. In Zak, it was
the action of the snowplow driver (use of the vehicle) that created the dangerous situation.
Whereas here, it was merely the failure of the snowplow driver to fully clear the parking lot, not

the usage of the snowplow itself`. Therefore, the assertion that the “use” of the snowplow caused

 

18 Id.
19 Id.
20 Id.
21 Id.
22 Id. at *2.

Plaintiff’ s injuries is untenable. As a result, the automobile insurance policy does not cover this
incident, so sovereign immunity is not waived. Horvat is precluded from bringing her claim.
B. Public Duty Doctrine
ln order to prevail in a negligence action, the Plaintiff must show that (1) she was owed a
duty of care by the State, (2) that duty was breached, (3) the breach proximately caused her
injury, and (4) she sustained damage as a result. Defendants contend that they only owe a duty
to the general public, not to the Plaintiff individually.23 The State relies on the public duty
doctrine to arrive at this conclusion. According to the Court in Zak,
That doctrine holds that where government action is involved, the duty that is
claimed to be owed to the injured party by a governmental agency or its agents
runs to the public at large and not to the specific individual. The public duty
doctrine, however, is inapplicable when there is a “special relationship” between
the governmental agency or its agents and the injured individual. Such a special
relationship exists when there is:
(1) an assumption by the governmental agency or its agents, through
promises or actions, of an affirmative duty to act on behalf of the
party who was injured;
(2) knowledge on the part of the governmental agency or its agents
that inaction could lead to harm;
(3) some form of direct contact between the governmental agency or
its agents and the injured party; and
(4) that party’s justifiable reliance on the affirmative undertaking of
the governmental agency or its agents.24
The special relationship exception does not apply in this case, so the State only owes a duty to
the general public, not Plaintiff individually. Consequently, Plaintiff cannot recover.
Plaintiff cannot demonstrate that the four elements of the special relationship exception are
met. First, Defendants did not assume a duty for the benefit of Plaintiff individually. The State

directs that “Personnel shall perform all necessary tasks to ensure that the assigned areas are

clear of snow and ice in a timely manner.” This is similar to the direction at issue in Zak. In that

 

23 Id. at *5.
24 Id. at *5.

case the plaintiff relied on 17 Del. C. § 132(b)(2) to establish a duty running from the State to the
decedent. Section 132(b)(2) states that DelDOT must “maintain all state highways under its
jurisdiction.”25 There is no mention of a duty running from the State to the Plaintiff individually
in either provision. Therefore, both in Zak and the case at bar, it must be concluded that
Defendants were only acting on behalf of the general public when clearing the snow and ice.

The fact that the Kent County Courthouse Parking Lot was designated for those having court
business makes this a closer case, but still does not support the contention that the State had
assumed a duty to benefit Plaintiff. The parking lot was not specifically assigned to Horvat or to
the jury pool generally. As previously mentioned, the parking lot was open to all people
conducting business at the Kent County Courthouse. Thus, no assertions have been made
supporting the idea that the State assumed a duty to clear the parking lot specifically for Plaintiff`.
In short, Horvat cannot claim that the first element of the special relationship exception is met.

Furthermore, Plaintiff fails when arguing there was direct contact between her and the State.
The jury summons and juror call-in line are not sufficient to establish direct contact. Jackson v.
Minner is informative. ln Jackson, the Court contrasted the relationship between a prison inmate
and correctional officers and a prison inmate and the correctional officers’ supervisors.26 An
inmate who was injured when he fell when entering a prison van brought suit against the
corrections officers who had been present at the time of his fall and had ignored his requests for
help into the van immediately before falling.27 The Court explained that, “. . .it is undisputed that
defendant correctional officers had direct contact with the plaintiff during the incident, because

they escorted him to the prison van and they were standing only several feet away from him

 

25 Id. at *6.
26 Jackson v. Minner, 2013 WL 871784, at *1 (Del. Super. Ct. Mar. l, 2013).

27 Id. at *4.

10

when he fell.”28 The inmate also alleged that the correctional officers’ supervisors were
negligent in enforcing written safety regulations and training, supervising, and monitoring the
correctional officers tasked with transporting the inmate.29 However, the Court did not find that
the supervisors had direct contact with the inmate, stating, “The plaintiff does not allege, and the
record does not show...that [the supervisors] had direct contact with him at the time of the
plaintiff s fall from the prison van.”30

From the Jackson Court’s holding it can be inferred that the “direct contact” prong of this
analysis is to be interpreted narrowly. Since the Court found it appropriate to draw a distinction
between the correctional officers and their supervisors, it appears that only those having personal
interaction with the individual member of the public can be said to have had “direct contact.” A
mere relationship or connectedness between the individual and the state actor, such as was
present between the inmate and the supervisors, is insufficient A relationship more analogous to
the contact between the inmate and the correctional officers would be the way to establish direct
contact. The Court does not wish to set out a bright line rule delineating the boundary between
direct contact and contact insufficient to satisfy the special relationship exception. That being
said, it is clear that the contact between Horvat and the State, i.e. the jury summons and the juror
call-in line, is more analogous to the tangential contact between the inmate and the supervisors,
and is not direct enough to satisfy this element of the analysis.

Additionally, Plaintiff has not offered sufficient evidence to show that the State was aware

that its inaction could potentially harm this individual or that Plaintiff was justifiably relying on

its assumption of this duty. The special relationship exception does not apply. The public duty

 

28 Id.
29 Id. at *5.
30 Id.

ll

doctrine stands; the State did not owe Horvat any duty of care beyond that which it owed the
general public.
C. State Tort Claims Act
The question at issue is whether the plowing of the Kent County Courthouse Parking Lot was
a discretionary or ministerial function. According to the STCA, as discussed in the previous
section, if the snow plow driver used discretion when plowing the parking lot, the State is
excused from liability. However, if clearing the snow was merely a ministerial function, the
State bears responsibility for the snowplow driver’s mistake. The Court in Jackson defined the
terms “discretionary” and “ministerial.” “Discretionary acts are those that require some
determination or implementation which allows for a choice of methods, or stated differently,
those acts where there are no hard and fast rules as to a course of conduct that one must or must
not take.”31 Conversely, “Ministerial acts are those which a person performs in a prescribed
manner without regard to his own judgment concerning the act to be done.”32 The key
distinction is whether the actor exercised his or her own judgment
The case Sussex County v. Morris considers whether a Sussex County Constable’s act of
driving a mental health patient from Milford Memorial Hospital to the State Hospital was
`discretionary or ministerial33 The Court wrote:
The immunity granted to discretionary acts does not extend to every circumstance
in which some element of choice is involved. Were that the case, virtually every
act would be considered discretionary since there are few that do not involve
some element of choice. . .To grant immunity based solely upon the existence of a
choice would run counter to logic, precedent, and the clear legislative intent
underlying the Act...[W]e use “ministerial” to describe those acts which, may

involve an insignificant element of choice, but which the legislature has not
insulated from immunity.***Rather than attempt to explicate terms as nebulous as

 

31 Id. at *6.
32 Id. (internal citations omitted).
33 This case construed the County and Municipal Tort Claims Act. The language at issue is substantially similar to

that found in the State Tort Claims Act.

12

“discretionary” and “ministerial,” we adopt the general definition of “ministerial”
set forth in the Restatement (Second) of Torts. An act is ministerial if the “act of
the official involves less in the way of personal decision or judgment or the matter
for which judgment is required has little bearing or importance upon the validity
of the act. . ..” The distinction between discretionary and ministerial acts is always

one of degree.34
This case helps to flush out the distinction between discretionary and ministerial acts; however, a
sizable degree of discretion left to the Court when considering the facts of a particular situation.

There is little guidance in Delaware case law concerning this question. However,

unsurprisingly, courts in Minnesota have dealt with the issue numerous times. A case from the
Minnesota Court of Appeals, Sinunons v. Olson, is on point. There, a snowplow driver collided
with a motorist while plowing a stretch of road.35 According to the snowplow driver, a four to
five foot tall snow pile had obstructed his view of oncoming traffic.36 The central question for
the Minnesota Court to answer was whether the snowplow driver had taken discretionary or
ministerial action while operating the plow. The Court wrote,

We have recognized that snowplow drivers must “assess the [road] conditions and

rely on [their] judgment to determine the appropriate speed. [They must also]

assess the existing road conditions and rely on [their] judgment to determine the

best time and manner for plowing. These decisions involve sufficient discretion

to fall within the protection of official immunity. When actively removing snow,
snowplow drivers exercise discretion.37

 

34 Sussex County v. Morris, 610 A.2d 1354, 1358-59 (Del. 1992).

35 Simmons v. Olson, 2001 WL 1530845, at *l (Minn. Ct. App. Dec. 4, 2001).

36 Id.

37 Id. at *2. See also Slanfi`eld v. Peregoy, 429 S.E.2d ll (Va. 1993)(holding that the action of snowplowing is
discretionary, but recognizing that if the accident had occurred while the snowplow was en route to the area to be
plowed or returning from a plowing operation, the outcome may be different); In re Alexandria Accident of
February 8, 1994, 561 N.W.2d 543 (Minn. Ct. App. 1997)(holding that, when actively removing snow, snow-
removal operations are discretionary); Igou v. Garden City Township, 2016 WL 7337143 (Minn. Ct. App. Dec. 19,
2016)(finding that due to the snowplow driver’s need for complex decision making and the balancing of several
factors when operating the plow, the action was discretionary. However, the Court placed emphasis on the
requirement that discretionary actions involve some exercise of judgment); Truman v. Griese, 762 N.W.2d 75 (S.D.
2009)(“In order to find a duty ‘ministerial,’ we must find a ‘governing rule or standard’ so clear and specific that it
directs the government actor without calling upon the actor to ascertain how and when to implement the rule or
standard.”). But see Wulfv. City of Merrill, 608 N.W.2d 538 (Wis. Ct. App. 1999)(stating that the parties agreed
“the City’s duty to clear snow from its streets is ministerial.”); Ku v. Town ofFramingham, 816 N.E.2d 170 (Mass.
App. Ct. 2004)(finding there to be liability when the conduct concerned “the carrying out of established policies
rather than actual policymaking and planning.”).

13

The Simmons Court clearly placed snowplowing into the discretionary category.

Minnesota courts have drawn a distinction between a snowplow driver operating a plow to
clear snow and operating a plow in the same manner in which any vehicle would be operated,
i.e., when the plow is simply being driven.38 For example, in Shariss v. City of Bloomington, a
snowplow driver backed up his plow in order to allow traffic to flow unimpeded. As a result, the

plow collided with another motorist. The Court found this action to be ministerial.39 The Court

wrote,

Here, Pawlak’s decision to drive his snowplow in reverse was similarly
ministerial because the job was simple and definite. Pawlak was stopped, waiting
in a queue behind another City snowplow. He was not actively engaged in snow-
removal operations when he thought that he was blocking the path of the school
bus behind him. Based on “standard operating procedure,” which imposed a duty
to “maintain traffic flow,” Pawlak decided to reverse his snowplow and begin to
back up. In doing so, Pawlak had an obligation to exercise due care...denying
immunity in this case does not implicate the concerns of deterring snowplow
drivers from exercising their judgment when making the difficult decisions that
may arise in the often hazardous activity of snow removal. But when a snowplow
driver is not actively engaged in snow-removal operations and performs a discrete
act that requires little or no independent judgment, he or she is obligated to
exercise care.40

This distinction serves to ensure that the discretionary duty exception is not read too broadly.
Moreover, courts have considered how the instruction given to the snowplow operator or

other state actor influences this analysis. If no clear instruction as to the manner of completion

was given, then the logical conclusion is that the actor will have to use his or her reasoning and

decision-making skills to complete the assignment41

 

313 Shariss v. City ofBloomington, 852 N.W.2d 278, 283 (Minn. Ct. App. 2014). See also Ayers v. Kalal, 2015 WL
9264116 (Minn. Ct. App. Dec. 21, 2015)(holding that the act at issue, driving a snowplow across a highway in order
to reach area to be plowed, was ministerial because the snowplow driver was only operating the vehicle, not clearing
the roadway).

39 Id.

40 Id.
41 See Connecticut Light & Power Co. v. Town ofGoshen, 2015 WL 7941567, at *4 (Conn. Super. Ct. Nov. 12,

2015); Kelley v. Jerde, 2007 WL 1531878, at *4 (Minn, Ct. App. May 29, 2007).

14

Now, the Court turns to the applications of law to the facts of this case. Here, it is clear that
the state employee charged with clearing snow from the Kent County Courthouse Parking Lot
was taking discretionary action. Determining when and how to plow the area as well as
considering whether appropriate paths and walkways had been made throughout the parking lot
for pedestrian crossing demonstrates the level of decision making and personal judgment
necessary to elevate these actions to the discretionary category. Operating a snowplow requires
more than the mere element of choice, as referenced in Morris. The types of decisions involved
with operating a snowplow are complex enough to merit the discretionary classification
Holding such does not construe the definition too broadly, as cautioned in Morris and Shariss.

Additionally, it is impossible for Plaintiffs harm to have been caused while the snowplow
was being operated as an ordinary vehicle. Horvat takes issue with the methods used when
clearing the parking lot, not the particular manner in which the plow was used.

Finally, the lack of detail provided in the state directive concerning snow clearing supports
the finding that this action is discretionary. The applicable policy states: “Personnel shall
perform all necessary tasks to ensure that the assigned areas are clear of snow and ice in a timely
manner.” The policy does not dictate how the assigned areas will be cleared in a timely manner.
Therefore, it follows that those tasked with the assignment may exercise their judgment to
determine how best to complete his or her duties.

Considering the foregoing, it is clear that plowing the Kent County Courthouse Parking Lot

was a discretionary action; therefore, Defendants are immune from suit under the STCA.42

 

42 The Court notes that even if the act of plowing the parking lot was found to be ministerial, sovereign immunity
and the public duty doctrine would still bar the suit from going forward. Hales v. English, 2014 WL 12059005, at
*3 (Del. Super. Ct. Aug. 6, 2014).

15

VI. CONCLUSION
Given that Defendants are shielded from liability for Plaintiff’ s injuries by sovereign
immunity, the public duty doctrine, and the STCA, the Court finds that there are no issues of
material fact. Defendants are entitled to summary judgment as a matter of law; Defendants’

Motion for Summary Judgment is GRANTED.

IT IS SO ORDERED.

16

