IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TIFFANY GREENFIELD, as Next
Friend and Guardian ad litem for
ETHAN FORD, a minor,

Plaintiff,
v.

BUDGET OF DELAWARE, INC.,
DFS DIRECTOR LAURA MILES,
individually and in her official
capacity; VICTORIA KELLY,
individually and in her official capacity
as DFS director, FAMILY CRISIS
THERAPIST TRINA N. SMITH,
Individually and in her official
capacity,' JAMIE ZEBROSKI
M.S.W., individually and in her
official capacity as a Supervisor for
DFS; CRYSTAL BRADLEY, M.S.,
Individually and in her official
capacity as a Senior Family Services
Specialist for DFS; JAVONNE RICH
Individually and in her capacity as
a Master Family Services Specialist for
DFS; NANCY CRAIGHTON,
individually and in her official
capacity as a Supervisor for DFS,

Defendants.

V\/\./\./\,/\./V\./\./`/V\./VVVVV\#VVVVV\./\./VV\./VV

C.A. No. N16C-07-115 FWW

Submitted: July 19, 2017
Decided: October 31, 2017

Upon DFS Defendants’ Motion to Dismiss
GILANTED.

M

Andrew C. Dalton, Esquire, and Bartholomew J. Dalton, Esquire, Dalton &
Associates, P.A., C001 Spring Meeting House, 1106 West Tenth Street, Wilmington,
DE, 19806; Attorneys for Plaintiffs.

Jeffrey A. Young, Esquire, Young & McNelis, 300 South State Street, Dover,
Delaware 19901; Attorney for Defendant Budget of Delaware, Inc.

Joseph C. Handlon, Esquire, Deputy Attorney General, Delaware Department of
Justice, 820 N. French Street, 6th Floor, Wilmington, DE, 19801; Attorney for
Defendants Laura Miles, Victoria Kelly, Trina N. Smith, Jaime Zebroski, Crystal
Bradley, Javonne Rich, and Nancy Craighton.

WHARTON, J.

This 31st day of October, 2017, upon consideration of the Motion to Dismiss
of Defendants Laura Miles, Victoria Kelly, Trina Smith, Jaime Zebroski, Crystal
Bradley, Javonne Rich, and Nancy Craighton (“DFS Defendants”), Tiffany
Greenfleld’s Response as next friend of and guardian ad litem for Ethan Ford
(“Plaintiff’), DFS Defendants’ Reply, argument, and the record in this case, it
appears to the Court that:

1. On July 15, 2017, Plaintiff brought this action against the above-
mentioned employees of the Division of Family Services (With the exception of
Nancy Craighton) in their individual and official capacities1 The original complaint
Was dismissed by the Court on the motion of the then-named DFS Defendants
because Plaintiff had failed to allege any facts detailing the individual DFS
Defendants’ culpability so as to overcome their civil immunity.2 Certain counts
alleging negligence and gross negligence Were dismissed for the additional reason
that Plaintiff had failed to plead those claims With particularity as required by
Superior Court Civil Rule 9(b).3 The dismissal Was Without prejudice and the Court

granted Plaintiff leave to file an amended complaint4

 

1Pl.’s. Compl., D.I. 1 at 1.

2 Greenfield for F ord v. Budget of Delaware, Inc., et al., 2017 WL 729769 at *2
(Del. Super. 2017).

3ld.

4Id. at *3.

2. Plaintiff filed the Amended Complaint on March 24, 2017.5 lt alleges
that DFS Defendants (noW including additional DFS Defendant Nancy Craighton)
conducted no less than four grossly negligent investigations regarding the living
conditions of Plaintiff and his sister.6 Plaintiff claims that DFS Defendants
recklessly “ignored a history of ongoing, unresolved risks in the home” When they
received numerous calls from his relatives requesting state action and received
reports of his destitute living conditions and developmental delays.7 As a result,
Plaintiff argues that DFS Defendants are liable because they recklessly disregarded
their statutorily imposed and mandatory duties as DFS employees to protect Plaintiff
in light of the evidence that Was presented to them.8

3. The Amended Complaint alleges the same five claims that Were in the
original Complaint: DFS Defendants Were negligent, grossly negligent, and reckless
in the performance of their duties With respect to the care of Plaintiff (Count I);9 DFS
Defendants violated Plaintiff’s equal protection and due process rights under the
United States and Delaware Constitutions and 42 U.S.C. § 1983 When they Were

negligent, grossly negligent, and reckless in their dereliction of mandatory duties

 

5 Pl.’s Amend. Comp., D.I. 20.
6Id. atjl 11.

7 Id.

8 Id.

9 Id. at 1111 23-25.

(Count Il);l° DFS Defendants “established a Special relationship With Plaintiff that
had the effect of restricting his liberty, thereby triggering liability for the affirmative
acts or omissions of state actors” in violation of 42 U.S.C. § 1983 (Count III);11
Defendants Laura Miles, Victoria Kelly, Jamie Zebroski, and Nancy Craighton Were
negligent, grossly negligent, and reckless in the hiring, retention, and supervision of
their employees (Count IV);12 DFS Defendants’ conduct amounted to an intentional
infliction of emotional distress (“IIED”) on Plaintiff (Count V).13 Plaintiff seeks
general, special, and punitive damages, plus costs and interest.14

4. On May 12, 2017, DFS Defendants moved to dismiss the Amended
Complaint for failure to state a claim.15 Defendants first argue that no claims exist
because the Delaware State Tort Claims Act (“DSTCA”), 10 Del. C. 4001, bars all
state claims against them and Plaintiff failed to plead facts to overcome that bar.16
Additionally, Defendants assert that the claims against them should be dismissed

under Rule 12(b)(6) because Plaintiff has not pled facts that state conceivable or

 

10 Id. at 1111 26-28.

11Id. at 1111 29-30.

12Id. at 1111 31-33.

13 Id. at 1111 34-36. Count V also alleges Intentional Infliction of Emotional Distress
against Defendant Budget of Delaware, Inc. Which has moved to dismiss as Well.
The claim against it under Count V is addressed by separate Order.

14 Id. at 1111 25, 28, 30, 33, 36.

15 Defs.’ Mot. Dismiss, D.I. 28

16Id. at 10.

plausible claims.17 Lastly, DFS Defendants argue that Plaintiff’ s claims are time-
barred pursuant to 10 Del. C. § 8119.18

5. On June 9, 2017, Plaintiff filed his answer opposing DFS Defendants’
Motion to Dismiss.19 Plaintiff claims that he has adequately alleged, with specificity,
Defendants’ negligence, gross negligence, and recklessness and therefore Counts l,
II, III, IV, and V should not be dismissed.2° Plaintiff also contends that the DSTCA
does not bar state claims against DFS Defendants because he has overcome at least
of the elements necessary for immunity under the DSTCA.21 Additionally, Plaintiff
claims that its action is not barred by the Statute of Limitations, but timely filed
under 10 Del. C. §8119.22

6. The Court heard oral argument on this matter on July 19, 2017.

7. A motion to dismiss for failure to state a claim pursuant to Superior
Court Rule 12(b)(6) will not be granted if the “plaintiff may recover under any
reasonably conceivable set of circumstances susceptible of proof under the
complaint.”23 The Court’s review is limited to the well-pled allegations in the

complaint In ruling on a 12(b) motion, the Court “must draw all reasonable factual

 

17Id. at 15.

181d. at 26-27.

19 Pl.’s Resp. Mot. Dismiss, D.I. 30.

20 Id. at 3.

211d. at 13.

22 Id. at 16.

23 Browne v. Robb, 583 A.2d 949, 950 (Del. 1990).

6

inferences in favor of the party opposing the motion.”24 Dismissal is warranted
“only if it appears with reasonable certainty that the plaintiff could not prove any set
of facts that would entitle him to relief.”25

8. The Court first turns to the question of whether DSTCA precludes the
claims against the DFS Defendants. Under DSTCA, state actors or employees who
are sued in their individual capacities are exempt from liability when: “(1) the
alleged act or failure to act arises out of and in connection with the performance of
official duties involving the exercise of discretion; (2) the act or failure to act was
done (or not done) in good faith; and (3) the act or failure to act was done without
gross negligence.”26 Plaintiff can avoid the application of the DSTCA, and defeat
immunity, if he can prove the absence of one of these elements.27 Here, Plaintiff
argues that DFS Defendants’ actions were ministerial, and not discretionary, and that
DFS Defendants acted with gross negligence28

9. Plaintiffs argument that DFS Defendants’ acts were ministerial fails,

and thus he cannot overcome the civil immunity afforded to the individual DFS

 

24 Doe v. Cclhill, 884 A.2d 451, 458 (Del. 2005).

25 Id.

26 See J.L. v. Barnes, 33 A.3d 902, 914 (Del. Super. 2011). See also § 4001;
Gutierrez v. Advanced Student Transp., Inc., 2015 WL 4460342, at *4 (Del. Super.
July 14, 2015).

27 See Barnes, 33 A.3d at 914; Gutierrez, 2015 WL 4460342, at *4. See also Thomas
v. Board of Educ. of Brandywine School Dist., 759 F. Supp. 2d 477, 500 (D. Del.
2010).

28Pl.’s Resp. Mot. Dismiss, D.I. 30, at 13-15.

7

Defendants by DSTCA on that basis. The DSTCA only provides immunity for
discretionary acts. If an act is ministerial, then DFS Defendants can be held liable
for negligence.29 Conduct is discretionary when “there is no hard and fast rule as to
[the] course of conduct that one must or must not take.”30 Ministerial actions or
failures to act, on the other hand, “involve less in the way of personal decision or
judgment,” are more routine, and typically involve conduct directed by mandatory
rules or policies.31 Plaintiff relies on 16 Del. C. §§ 901, 902, and 906 as establishing
mandatory duties imposed upon DFS Defendants, thereby making their actions
ministerial and not discretionary.32 Of the cited sections, § 901 is merely a statement
of the purpose of child welfare policy in Delaware and § 902 is the definitional
section for the chapter. These sections do not support Plaintiff’s argument. The
final section cited, § 906, describes how the State’s policy of investigating reports
of child abuse and neglect is to be executed. How that policy is to be carried out
necessarily invokes the exercise of discretion. The Court is convinced that DFS
Defendants’ actions are inherently discretionary. To the extent that § 906 imposes

mandatory duties upon the Division of Family Services in opening and closing cases,

 

29 Whitsett v. Capital School Dist., 1999 WL 167836, at *1 (Del. Super. Jan. 28,
1999)

30 J.L. v. Barnes, 33 A.3d 902, 914 (Del. Super. Ct. 2011) (quoting Estate of Martin
v. State, 2001 WL 112100, *5 (Del. Super. Jan. 17, 2001).

31Ia'. See also Sussex County v. Morris, 610 A.2d 1354, 1359 (Del. 1992); Knoll v.
Wright, 544 A.2d 265 (Del. Jun. 29, 1988), 1988 WL 71446.

32Pl.’s Resp. Mot. Dismiss, D.I. 30, at 14.

8

and conducting investigations and assessments, that section requires workers and
supervisors to exercise their discretion at virtually every turn. Discretion is at the
very heart of the investigative process. Further, Plaintiff offers no facts that would
enable the Court to determine how any individual DFS Defendant’s action is alleged
to be ministerial as opposed to discretionary. Accordingly, Plaintiff has failed to
overcome the individual DFS Defendants’ immunity on the basis that their actions
were ministerial.

10. Plaintiff also cannot overcome the civil immunity afforded to the
individual DFS Defendants by DSTCA because Plaintiff fails to plead facts
supporting a claim of gross negligence against any DFS Defendant. Gross
negligence represents “more than ordinary inadvertence or inattention.”33 lt is “an
extreme departure from the ordinary standard of care.”34 A derivation from the duty
of care can also be demonstrated by willful and wanton conduct. Willfulness
“indicates an intent, or a conscious decision, to disregard the rights of others.”35
Wanton conduct “occurs when a person, though not intending to cause harm, does

something so unreasonable and so dangerous that the person either knows or should

know that harm will probably result.”36

 

33 Jara'el Co., Inc. v. Hughes, 523 A.2d 518, 530 (Del. 1987).

34 Brown v. Robb, 583 A.2d at 953 (quoting W. Prosser, Handbook of the Law of
Torts 150 (2d ed. 1955)).

55 Del. P.J.I. Civ. § 5.10 (2000).

36Del. P.J.l. Civ. § 5.10 (2000).

1 1. In Count I of the Amended Complaint, Plaintiff alleges that Defendants
Trina Smith and Crystal Bradley were grossly negligent in the performance of their
duties during their respective DFS investigations37 Count V alleges IIED.38
Defendant Smith conducted a 41-day investigation in 2009 when Ethan Ford was
born with marijuana in his system.39 Ultimately, that investigation was closed as
“unsubstantiated with concern.”40 Defendant Bradley handled the last DFS
investigation prior to the death of Ethan Ford’s sister. That investigation occurred
as a result of a complaint by Tiffany Greenfield and others that Ethan’s mother and
her boyfriend had arrived at Greenfield’s home to pick up Ethan and his sister and
forcibly removed them while under the influence of drugs.41 This investigation was
closed after 52 days as “unsubstantiated with concern” but moved into treatment42
In neither of these instances do the facts as alleged by Plaintiff support the
allegations of gross negligence, despite the hyperbolic language of the Amended
Complaint. He fails to allege facts that constitute an extreme departure from the
ordinary standard of care, an intent or conscious decision to disregard the rights of

others, or that were so unreasonable and so dangerous that Defendant Smith or

 

37 Pl.’s Amend. Compl., D.I. 20, at 11 24.
38Id. at 111 35-36.

39Ia’. at 11 13.

4°Ia’.

411d. at11 18.

421d. at 11 20.

10

Defendant Bradley either knew or should have known that harm would probably
result. The Court also finds that the involvement of Defendant Smith and Defendant
Bradley does not square with Plaintiff’ s ultimate harm. These Defendants’ single
and limited investigations, are too far removed from the end result, either temporally,
qualitatively, or causally to rise to the level of gross negligence on each of their parts.
Accordingly, the Plaintiff has failed to meet his burden of alleging facts
demonstrating gross negligence or willful and wanton conduct. Theref`ore, Countl
and of Plaintiffs Amended Complaint - Negligence, Gross Negligence, and
Recklessness - as to Defendants Trina Smith and Crystal Bradley is DISMISSED.
In order to plead a claim for IIED, a plaintiff must show that a defendant
intentionally or recklessly caused severe emotional distress to the plaintiff43
Extreme and outrageous conduct must be “so extreme in character, and so extreme
in degree, as to go beyond all possible bounds of decency, as to be regarded as
atrocious, and utterly intolerable in a civilized community.”44 Count V, Intentional
Infliction of Emotional Distress is DISMISSED as to Defendants Trina Smith and
Crystal Bradley because the conduct alleged does not remotely meet the pleading

standard for IIED.

 

43Spence v. Cherian, 135 A.3d 1282, 1288-89 (Del. Super. 2016); Cooper v. Bd. of
Educ. of Red Clay Consol. Sch. Dist., 2009 WL 25 81239, at *3 (Del. Super. 2009)
(quoting RESTATEMENT (SEcoND) oF ToRTs § 46).

44Spence, 135 A.3d at 1289; Rae v. Midway Realty Corp., 1983 WL 100452, at *4
(1989) (quoting RESTATEMENT).

11

12. ln Count I of the Amended Complaint, Plaintiff also alleges that
Defendants Victoria Kelly, Nancy Craighton, Laura l\/Iiles and Jaime Zebroski were
“negligent, grossly negligent, and reckless in their performance of their duties with
respect to the care of Ethan Ford.”45 ln their supervisory capacities, they are alleged
to have acted with gross negligence or recklessness when they “hired, trained, and
continued to employ the other named individual Defendants.”46 Plaintiff, however,
cannot establish Defendants’ legal duty or gross negligence Delaware law
recognizes claims of negligent hiring and supervision of employees, but that liability
is imposed on the employer where the employer is negligent, not on supervisors.47
l\/Ioreover, Defendants Kelly, Craighton, Miles, and Zebroski did not owe Plaintiff
a legal duty to supervise, hire, and train as to Ethan Ford.48 Further, the claims
against the supervisors are premised upon the assertion that the people they
supervised were not immune under DSTCA, either because those people were
performing ministerial acts or were grossly negligent. Because, the Court finds that
the investigators were not performing ministerial acts and were not grossly

negligent, it follows that their supervisors were not performing ministerial acts and

 

45 Pl.’s Amend. Compl., D.I. 30, at 11 24.

46Ia'. at 11 33.

47 Fanean v. Rite Aid Corp. of Delaware, Inc., 984 A.2d 812, 825-26 (Del. Super.
2009);

41‘See, e.g., Brown v. Budz, 398 F.3d 904 (7111 Cir. 2005).

12

were not grossly negligent either.49 Finally, as with Defendants Smith and Bradley,
the conduct alleged does not remotely meet the pleading standard for IIED.
Therefore, Count I, Negligence, Gross Negligence, and Recklessness, Count IV,
Negligent, Grossly Negligent, and Reckless Hiring, Retention, and Supervision, and
Count V Intentional Infliction of Emotional distress as to Defendants Victoria Kelly,
Nancy Craighton, Laura Miles, and Jaime Zebroski are DISMISSED.

13. The Court finds that Plaintiff s equal protection and due process claims
must be dismissed as well. DFS Defendants move to dismiss Count ll - Civil Rights
Violations under 42 U.S.C. § 1983 and the United States and Delaware
Constitutions.5° Plaintiff’ s response, however, does not address the equal protection
and due process claim, but focuses solely on the state created danger claim,51
Therefore, the Court finds Plaintiff has conceded or waived his equal protection
claim and due process claim,52 For this reason, Count ll of Plaintiff’ s Amended
Complaint is DISMISSED.

14. Further, the Court finds that Plaintiff’ s state-created danger § 1983

 

49 The Court’s findings apply as well to the unnamed investigator referenced in 11 14
of the Amended Complaint,
50 Am. Compl., D.I. 20, at 1111 26-28. See also Pl.’s Resp. Mot. Dismiss, D.I. 30, at
1 5 - 1 9.
51 Pl.’s Resp. Mot. Dismiss, D.I. 30, atl 1-13.
52 “It is settled Delaware law that a party waives an argument by not including it in
its brief.” Emerald P’rs v. Berlin, 2003 WL 21003437, at *43 (Del. Ch.); See also
In re IBP, Inc. Sharehola’ers Litig., 789 A.2d 14, 62 (Del. Ch.2001) (party waived
argument by not including it in opening post-trial brief).

13

claim must be dismissed as well.53 The four elements required for a state-created

danger exception include:

(l) the harm ultimately caused was foreseeable and fairly
direct; (2) a state actor acted with a degree of culpability
that shocks the conscious; (3) a relationship between the
state and the plaintiff existed such that the plaintiff was a
foreseeable victim of the defendant’s acts, or a member of
a discrete class of persons subjected to the potential harm
brought by the state’s actions, as opposed to a member of
the public in general; and (4) a state actor affirmatively
used his or her authority in a way that created a danger to
the citizen or that rendered the citizen more vulnerable to
danger than had the state not acted at all.54

Plaintiff cannot establish any of the four required elements. The first and third
prongs focus on whether the plaintiff is a foreseeable victim of the def`endants.55 The
Court has already found the DFS Defendants’ conduct and involvement too
attenuated a link in the chain and difficult to square with the resulting harm.
Therefore, the Court reaffirms its belief that the Plaintiff was not a foreseeable victim

of the DFS Defendants. Moreover, Plaintiff’s harm was directly from the hands of

 

55 42 U.S.C. § 1983 (“Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for redress..
.”).

54 McCa/frey v. City of Wilrnington, 2013 WL 4852497 (Del. Super. June 26,
2013), judgment vacated in part on reconsideration, 2014 WL 598030 (Del. Super.
Jan. 31, 2014).

55 Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006).

14

Ethan’s mother, not the DFS Defendants. Therefore, Plaintiff fails to establish the
first and third prongs. Similarly, Plaintiff cannot satisfy the fourth prong. Because
Plaintiff’s harm was the result of his mother’s actions, not DFS, the DFS
Defendants’ exercise of authority did not render Plaintiff more vulnerable to danger
than had DFS not acted at all. Rather, had the DFS Defendants not investigated at
all Plaintiff’ s harm may have been more severe. Plaintiff, in addition, fails the
second prong of the state-created danger test. Plaintiff does not elicit any facts, and
the Court likewise finds no evidence that DFS Defendants’ actions “shock the
conscience.” However, because Plaintiff fails to prove any of the required elements
of the state-created danger test, this claim fails as a matter of law. Count III of
Plaintiff’ s Amended Complaint is therefore DISMISSED.

15. Plaintiff conceded at oral argument that he had failed to make any factual
allegations to support his claims against Defendant Javonne Rich. Accordingly, all
counts against Javonne rich are DISMISSED.

16. Notwithstanding the foregoing, the Court feels constrained to address
DFS Defendants’ argument that this action against them is barred by the two-year
statute of limitations of 10 Del. C. § 8119. Their argument is simple - May 29, 2014
is the date the last DFS investigation was closed, and is the date of the last act or

omission of any DFS Defendant.56 DFS Defendants argue that May 29, 2014 then

 

56 Defs.’ Mot. Dismiss, D.I. 28, at 26.
15

is necessarily the date of the last injury Plaintiff alleges was caused by any DFS
Defendant.57 Since the Complaint was not filed until July 15 , 2016, it is untimely.58
They further argue that Ethan’s minority status does not toll the statute of limitations
since 10 Del. C. § 81 16’S tolling provisions for infancy or incompetency do not apply
to personal injury actions.59 Plaintiff, on the other hand, argues that the date that the
statute begins to run is not the date of the last injury, but the date that the injury was
discovered.60 Plaintiff puts the date of discovery at the date of his sister’s death -
August 8, 2014, making the Complaint timely.61 Plaintiff also argues that the acts
of DFS Defendants were continuous wrongs until the cause of action accrued upon
the death of his sister.62 The Court does not accept either argument DFS Defendants
are sued in their individual capacities, with Plaintiff alleging separate and distinct
acts committed by different defendants over a five- year period. There is simply no
basis to impute the allegedly wrongful conduct of one DFS Defendant to any other
DFS Defendant so as to make any individual DSF Defendant liable for a continuous
wrong. Similarly, the Court does not accept Plaintiff"s argument that the statute of

limitations begins at the time of the discovery of the injury - § 8119 sets the starting

 

57Id.

581a’.

551a’.

50 Pl.’s Response Mot. Dismiss, D.I. 30, at 16.
61 ld.

62Ia’., at 17.

16

date for the statute of limitations as the “date upon which it is claimed that such
alleged injuries were sustained.” lt is clear to the Court that Ethan’s claimed injuries
were not unknowable to him (or more realistically, someone acting on his behalf,
such as his next friend in this litigation) prior to the death of his sister. As noted by
DFS Defendants, the Amended Complaint itself is replete with examples of claimed
wrongs committed by DFS Defendants knowable to Ethan or his responsible
relatives.63 The time of discovery rule for inherently unknowable injuries simply is
inapplicable here. For those reasons, the Court finds this action to be barred by 10
Del. C. 8119 as to the DFS Defendants.

THEREFORE, Defendants’ Motion to Dismiss is GRANTED. Counts l, ll,
Ill, lV, and V as to DFS Defendants of Plaintiff’s Amended Complaint are

DISMISSED.

IT IS SO ORDERED.

(1/`

\
F{rris W. Wharton, J.

 

 

65Defs.’ Reply, D.I. 35, at 16.
17

