IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ROBIN P. THOMPSON, as Guardian
Ad Litem for REED C. THOMPSON,

a minor,
Plaintiff,

v. C.A. No. Nl7C-()9-()52 RRC

CAPE HENLOPEN SCH()OL
DISTRICT and BRIDGETTE
PEROTTA,

Defendants.

Submitted: February 18, 2019
Decided: March 20, 2019

On Defendants’ Motion for Summary Judgment. GRANTED.
MEMORANDUM OPINION

Thomas J. Roman, Esquire, and Emily P. Laursen, Esquire, Kimmel, Carter, Roman,
Peltz & O’Neill, P.A., NeWark, Delaware, Attorneys for Plaintiff.

Douglas T. Walsh, Esquire, Marshall Dennehey Warner Coleman & Goggin, P.C.,
Wilmington, Delaware, Attorney for Defendants.

COOCH, R.J.
I. INTRODUCTION

In this case, Robin P. Thompson, (“Plaintiff”) as Guardian Ad Litem for Reed
C. Thompson, a minor, alleges that defendants’ negligent and grossly negligent
actions led to Reed sustaining a severe injury to his right little finger In defendants’
motion for summary judgment, they argue that the record demonstrates that Plaintiff
has failed to overcome the immunity from civil suits afforded to Defendants under

l

the Delaware State Tort Claims Act (“DSTCA”), 10 Del. C. § 4001. Specifically,
defendants argue that Perotta’s actions prior to Reed’s accident were discretionary
in nature and not grossly negligent Further, defendants contend that the immediate
cause of PlaintifF s injury, a classroom door, was not faulty in any relevant way.

The Court finds that there are no disputes of material fact which would
preclude summary judgment, and the Court concludes defendants are entitled to
judgment as a matter of law. Perotta was conducting a discretionary task at the time
of Reed’s accident, and as such only gross negligence will overcome the DSTCA
immunity. The record viewed in a light most favorable to Plaintiff does not indicate
gross negligence Under lO Del. C. § 4001 defendants are immune from liability in
this civil suit. Defendants’ Motion for Summary Judgment is granted.

II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND

During the 2015-2016 school year, Reed C. Thompson attended the fourth
grade at Rehoboth Beach Elementary School. Reed was a student in Perotta’s class.
On March 9, 2016, Perotta led a hands-on mathematics lesson from the students’
mathematics workbook. The school district’s curriculum mandated that this lesson
be taught, and the fourth grade teachers “met twice a week to go over curriculum in
an attempt to make sure they were all teaching the same thing.”l The lesson called
for the students to measure the dimensions of specific items around the classroom.
One of the items the students were required to measure was a flag. The classroom
flag hung overhead near the sole classroom door.

Perotta provided some instruction to the students, and the lesson commenced
Reed began to measure the flag by the classroom door, which was closed at the time.2
Reed balanced himself on the doorframe for stability. While Reed worked, another
student returned to the classroom from the hallway through the classroom door.3 The
door closed shut on Reed’s little finger on his right hand and severed the tip of that
finger (the “accident”). PlaintifF s complaint had originally alleged that a gust of
wind caused the door to slam shut, but that allegation was abandoned at oral
argument, after discovery.

The door that injured Reed was the only entrance into the classroom. The door
had a self-closing mechanism which closed the door automatically. A kickstand

 

l Pla.’s Br. in Opposition, Trans. No. 62806393, at 3-4 (Dec. 28, 2018).
2 Def.’s Reply Br., Trans. No. 62853908, at 5 111 (Jan. ll, 2019).

3Id.
2

attached to the door was intended to stop the door from closing. However, the
kickstand did not have enough grip on the floor to prevent the door from shutting.
At some point, a custodian at Rehoboth Beach Elementary advised Perotta to “spit”
on the floor to provide increased grip for the kickstand.4 Perotta declined to follow
that suggestion, and instead utilized a wedge doorstop whenever she wished to keep
the door open.5 The wedge doorstop apparently worked as intended.6

Plaintiff initiated this civil suit claiming that Reed suffered injury as a result
of defendants’ negligence and gross negligence Defendants originally moved to
dismiss Plaintist complaint, arguing that Plaintiff failed to allege sufficient facts to
overcome defendants’ DSTCA immunity. At oral argument on the motion to
dismiss, Plaintiff s counsel indicated that there was reason to believe other similar
incidents involving gusts of wind had occurred with the same classroom door prior
to the accident This Court denied defendants’ motion to dismiss, and the Court
afforded Plaintiff time to undertake discovery to potentially shed further light on
Reed’s incident and any potential prior similar incidents Through the course of
discovery, the parties learned that the alleged similar incidents did not occur until
after the accident. Reed confirmed this timeline in his deposition testimony.7
Discovery has since closed, and Plaintiff has not sought to amend the complaint.
Defendants now move for summary judgment

III. THE PARTIES’ CONTENTIONS

A. Defena'ants ’ Contentions

Defendants move for summary judgment based on the immunity afforded to
public entities under the Delaware State Torts Claims Act. Under the DSTCA, public
entities, such as Cape Henlopen School District and its employees, are afforded
immunity from liability in a civil suit when the conduct complained of was a
discretionary act performed in good faith, without gross negligence

Defendants argue that Perotta’s conduct was entirely discretionary
Defendants contends that the manner in which teachers supervise their students is
discretionary as a matter of law, partly because teachers must use their own judgment

 

4 Def.’s Reply Br., at 4 1[ 9.

5 ld.

6 Ia’.

7 See Def.’s Opening Br., Trans. No. 62704290, at 6 11 ll (Nov. 28, 2018).
3

on how the supervision should be carried out.8 Perotta provided instructions for the
math lesson, and was present in the classroom to supervise the students throughout
the math lesson and when the accident occurred. defendants argue that Plaintiff has
not provided any evidence_such as a school policy, protocol, or rule_to suggest
the manner in which Perotta chose to supervise was instead ministerial in nature

Second, defendants argue that Perotta’s conduct does not in any event
constitute gross negligence Defendants contend that Plaintiff has not provided any
evidence to suggest that defendants knew or should have known of other incidents
with the classroom door prior to the accident Defendants asserts that Reed
Thompson’s own deposition testimony disproves any allegations of prior
knowledge Further, defendants contend that the Plaintiff cannot support a claim of
gross negligence based on the faulty kickstand because the kickstand was not used
at the time of the accident, and it is not relevant to this case

B. Plaintijj"$ Contentions

Plaintiff advances two arguments to overcome the DSTCA immunity. For
both arguments, Plaintiff maintains that there are material issues of fact in dispute
which preclude granting summary judgment

First, Plaintiff contends that Perotta’s conduct was ministerial, not
discretionary, in nature. Plaintiff argues that an act is ministerial when a school
implements a policy regarding the act “and the school is required to follow that
policy.”9 Plaintiff contends that Perotta’s conduct falls within the definition of a
ministerial act because the district required that a certain curriculum be taught l 0 The
curriculum required the workbook lesson and Perotta only gave “some
instruction[.]”ll Plaintiff contends that the curriculum is a mandatory school policy,
and that Perotta’s implementation of this mandatory policy should be considered
ministerial

Second, Plaintiff argues that even if Perotta’s conduct was discretionary, not
ministerial, Perotta acted with gross negligence A finding of gross negligence would
eliminate defendants’ immunity. Plaintiff claims that the defendants were aware of

 

8Ia’. at 3 (citing Morales, 2013 WL 3337798, at *4).

9 Pla.’s Br. in Opposition., at 3 11 5 (citing Morales v. Fam. Founds. Acad., Inc., 2013 WL 3337798,
at *3 (Del. Super. Ct. June 11, 2013)).

10 Id. at 3 11 6.

" Id. at 4 jj 7.

the “broken classroom door” prior to and at the time of the accident.12 Plaintiff
argues that despite this knowledge Perotta required students to stand near the
classroom door to measure the flag that hung nearby. Further, Plaintiff contends that
Perotta permitted another student to go to the bathroom at the time of the accident,
and turned her back on the classroom door despite knowledge that the student would
need to come back through the allegedly faulty door. Plaintiff argues that this
conduct constitutes gross negligence

IV. STANDARD OF REVIEW

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.13 On summary
judgment, the Court must view the facts in the light most favorable to the non-
moving party.14 Once a moving party establishes that no material facts are disputed,
the non-moving party bears the burden to demonstrate a material fact issue by
offering admissible evidence.15 The non-moving party must do “more than simply
show that there is some metaphysical doubt as to material facts.”16 Further, the Court
may draw rational inferences from the facts.17

V. DISCUSSION

The Court agrees with defendants that there are no disputes of fact material to
the resolution of this case as a matter of law, even when looking at the facts in a light
most favorable to the non-moving party, the Plaintiff. The record is straightforward,
and the outcome of this motion turns wholly on the application of the Delaware State
Tort Claims Act, 10 Del. C. § 4001. The DSTCA provides public entities and public
employees qualified immunity in any civil suit in which the complained of conduct
involved the exercise of discretion, and was performed in good faith without gross
negligence.18

 

12 Pla.’s Br. in Opposition, at 5 11 11.
13 Super. Ct. Civ. R. 56(e).
14 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970).
15 See Super. Ct. Civ. R. 56(e); see also Phillips v. Del. Power & Light Co., 216 A.2d 281, 285
(Del. 1966).
16 Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995) (citing Matsushita Elec. lndus. C0., Lta’. v.
Zenith Raa'io Corp., 475 U.S. 574, 586 (1986)).
17 Merrill v. Crothall-American, Inc., 606 A.2d 96, 99-100 (Del. 1992).
18 10 Del. C. § 4001; see Lloyd v. Jejj”erson, 53 F.Supp.2d 643, 683 (D. Del. May 12, 1999) (citing
Wiers v. Barnes, 925 F.Supp 1079, 1091 (D. Del. May 3, 1996)).
5

A. Discretionary Act vs. Ministerial Act

Much of the consideration under 10 Del. C. § 4001 centers around the
distinction between discretionary acts, which are subject to immunity, and
ministerial acts, which are not afforded immunity.19 Generally, discretionary acts
“are ‘those which allow[] a choice of methods, or those where there is no hard
and fast rule as to a course of conduct”’ the actor must or must not take20 On the
other hand, a ministerial act is an act in which the method of implementation is
dictated or mandated by certain procedures.21 A ministerial act is performed
“without regard to [the actor's] own judgment concerning the act to be done[,]”22 or
“the matter for which judgment is required has little bearing upon the validity of
the act.”23

Delaware courts have previously stated that while a teacher’s overarching
duty to supervise students is ministerial, the “manner in which a teacher actually
supervises 1students] is discretionary.”24 Teachers are called upon to use their own
judgment and evaluate “many factors” when supervising the classroom.25 The
discretion afforded to teachers in the classroom allows for “a choice of methods[.]”26
When there is no applicable “hard and fast rule[,]”27 such as a school policy, that
directs the manner in which teachers must act to the point that they have little to no

 

19 See Hughes ex rel. Hughes v. Christiana School District, 950 A.2d 659 (Table), 2008 WL
2083150, at *2-3 (Del. 2008); Lloya', 53 F.Supp.2d at 683; Sussex Counly, Delaware v. Morris,
610 A.2d 1354, 1358-59(De1. 1992).
20 Morales v. Family Founds, Acad., lnc., 2013 wL 3337798, at *3 (Del. super. Ct. June 11, 2013)
(quoting Simms v. Christiana Sch. Dist., 2004 WL 344015, at *8 (Del. Super. Ct. Jan. 30, 2004));
see also Hughes, 2008 WL 2083150, at *3.
21 See Holmes v. D'Elia, 2015 WL 1889030, at *l (Del. Super. Ct. Apr. 20, 2015); J.L. v. Barns,
33 A.3d 902, 914 (Del. Super. Ct. 2011).
22 Morales, 2013 WL 3337798, at *3 (quoting Simms, 2004 WL 344015, at *8).
23 Hughes, 2008 WL 2083150, at *3 (quoting Restatement (Second) of Torts § 895D cmt. h
(1979)).
24 Morales, 2013 WL 3337798, at *4 (“Furthermore, although the overarching duty to supervise
children is a ministerial act, the manner in which a teacher actually supervises is discretionary.”).
See Hale v. Elizabeth W. Murphey Sch., Inc., 2014 WL 2119652, at *4 (Del. Super. Ct. May 20,
2014); Tews v. Cape Henlopen Sch. Dist., 2013 WL 1087580, at *4 (Del. Super. Ct. Feb. 14, 2013);
Martin ex rel. Martz`n v. State, 2001 WL 112100, at *6 (Del. Super. Ct. Jan. 17, 2001).
25 Morales, 2013 WL 3337798, at *4.
26 Id. at *3.
27 ld. at *3 (citing Simms, 2004 WL 344015, at *8).

6

choice in the matter, then the act_classroom supervision in this case-_is considered
discretionary in nature.28

In the instant case, Plaintiff argues that the school’s curriculum constitutes a
hard and fast rule, and its implementation by Perotta is a ministerial act This
argument is unavailing The fourth grade teachers met multiple times a week to
discuss the curriculum and attempt to make sure they were all teaching the same
thing to their different fourth grade classes. The fact that all the teachers sought to
implement the curriculum in the same way does not mean the curriculum or the
lessons are “hard and fast rule[s].”29 At best, the curriculum broadly guided the
teachers’ lesson plan over the course of the school year. There is no indication that
the teachers were directed on what they must or must not do in a manner which left
the teachers with minimal to no discretion.

The instant case contrasts with the scenario presented in Whitsett v. Capital
School District. In Whitsett the defendant-school had a clear policy in place
regarding student exclusion from gym class for medical reasons. This policy directed
how teachers should act30 The plaintiff-student provided a doctor’s note excusing
him from gym class for the following few weeks. Instead of temporarily assigning
him to another class, defendant-school had plaintiff-student watch gym class from
the sidelines. On his way to the sidelines during an outdoor gym class, plaintiff-
student was injured when pushed by other students. The Court concluded that the
exclusion policy left the school with little to no discretion on how to handle a student
excluded from class. Accordingly, implementation of the policy was considered
ministerial and the school could be liable in a civil suit.31

Plaintiff has not provided any hard and fast rule akin to the Whitsett policy
which would rebut the general rule that the manner in which a teacher supervises
that teacher’s students in the classroom is a discretionary act Even when looking at
the facts in a light most favorable to the Plaintiff, the Court finds that defendants’
conduct on March 9, 2016, was discretionary

 

28 See Whitsett v. Capital Sch. Dist., 1999 WL 167836, at *1 (Del. Super. Ct. Jan. 28, 1999) (“When
a policy is implemented by a school, the school is required to follow that policy, making its actions
with regard to that policy ministerial and not discretionary in nature.”)
29 Momles, 2013 wL 3337798, at *3.
30 Whitsett, 1999 WL 167836, at *1.
31 The Superior Court denied defendant-school’s motion to dismiss so as to allow discovery to
continue “to determine whether that policy was adequately followed or whether the defendants
acted with gross negligence.” Ia'. at *1.

7

B. Gross Negligence

Although the Court views defendants’ conduct as discretionary, the DSTCA
immunity will not apply if defendants’ conduct constituted gross negligence.32 Gross
negligence is “more than ordinary inadvertence or inattention[,]”33 and represents “an
extreme departure from the ordinary standard of care.”34 The Delaware Supreme Court
has likened gross negligence to that of criminal negligence as set forth in 11 Del. C. §
231(a).35 Gross negligence “exists when a person fails to perceive a risk of such a
nature and degree that failure to perceive it constitutes a gross deviation from the
standard of conduct that a reasonable person would observe in the situation.”36

In the instant case, Plaintiff argues that defendants failed to perceive the risk that
the classroom door supposedly posed to the students Even when the facts are viewed
in a light most favorable to Plaintiff, the Court does not see how the door posed a risk.
Although the kickstand was faulty, it was not a risk in this case because it was not in
use at the time of the accident Perotta explained that she would use a wedge doorstop,
not the kickstand, if she wished to prop the door open. The wedge doorstop was not a
risk either, because there is no evidence that the wedge doorstop was faulty. Nor was
the wedge doorstop in use at the time of the accident Further, no one was attempting
to keep the classroom door propped open at the time of the accident Thus, whether or
not the door would stay open when someone intended for it to remain open is irrelevant
to Plaintiff"s allegations

As to the door itself, there is no evidence that the door was faulty in a manner
which constituted a risk when the door was used for simple entrance and exit. The door
was the only means of ingress in and out of the classroom, and it can be assumed that
the door was used throughout every school day. There were apparently no incidents
with that door prior to the accident Without prior knowledge of similar incidents, or
any other indication that the door posed a risk, Perotta’s decision to have students work
near the functional door cannot be described as an extreme departure from the ordinary
standard of care Even when the material facts are viewed in a like most favorable to
Plaintiff, defendants’ actions on March 9, 2016, were not grossly negligent

 

32 See 10 Del. C. § 4001 (3) (“no claim or cause of action shall arise [when] [t]he act or omission
complained of was done without gross or wanton negligence[.]”)
33 See Morales, 2013 WL 3337798, at *6.
34 Morales, 2013 WL 333798, at *2 (citing Browne v. Robb, 583 A.2d 949, 953 (Del. 1990)).
33 See Jara'el Co., Inc. v. Hughes, 523 A.2d 518, 530 (Del. 1987).
36 Jordan v. Ina'ian River Sch. Dist., 2014 WL 12814550, at *3 (Del. Super. Ct. July 31, 2014)
(quoting Morales, 2013 WL 3337798, at *2).
8

CONCLUSION

Reed Thompson suffered an unfortunate injury However, under 10 Del. C. §
4001 both public schools and their employees are immune from civil liability when
certain conditions are met These conditions are met in this case First, Perotta was
afforded wide discretion on how to supervise her class, and in doing so undoubtedly
relied upon her own judgment Such conduct is discretionary Second, Perotta used
a functional wedge doorstop to keep the door open. The door had no other known
issues Directing the students take measurements near a fully operational door does
not constitute gross negligence As such, defendants are afforded immunity under
10 Del. C. § 4001.

Therefore, for the foregoing reasons, defendants’ Motion for Summary
Judgment is GRANTED.

IT IS SO ORDERED.

M!KLWL_

Richard R. Cooch, R.J.

cc: Prothonotary

