IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CYNTHIA DOMINICA,
Plaintiff,

V. C.A. No.: N20C-02-150 FJJ
THE GREENERY AT RODNEY
SQUARE, INC., GREENERY
CATERERS, INC., THE ROCK WOOD
PRESERVATION SOCIETY, INC., and
NEW CASTLE COUNTY,

Defendants.

Submitted: March 20, 2020
Decided: July 9, 2020

AMENDED MEMORANDUM OPINION

On Defendant New Castle County’s Motion to Dismiss - GRANTED

Timothy A. Dillon, Esquire

McCann & Wall, LLC,

300 Delaware Avenue, Suite 805, Wilmington, DE 19801.
Attorney for Plaintiff Cynthia Dominica

Colin M. Shalk, Esquire

Casarino, Christman, Shalk, Ransom & Doss, P.A.,

1007 N. Orange Street, Suite 1100, P.O. Box 1276, Wilmington, DE 19899.
Attorney for Defendants, the Greenery at Rodney Square and Greenery Caterers, Inc.

Mary A. Jacobson, Esquire

New Castle County Government Center,
87 Reads Way, New Castle, DE 19720.
Attorney for New Castle County.

Jones, J.
Introduction

This is a personal injury action that arises out of a slip-and-fall that occurred on May
18, 2018 at the Rockwood Park and Museum (“Rockwood”). The incident occurred as
Plaintiff was leaving a wedding held at the museum. Plaintiff alleges in her Complaint that
she slipped and fell “due to an unsafe and defective walkway” that connected to a parking
lot for the facility. Defendant New Castle County (“the County”) has filed a Motion to
Dismiss, arguing that it is immune from suit under the County and Municipal Tort Claims
Act (the “CMTCA”).!

The Court finds that the County is immune from liability under the facts of this case.
Accordingly, the County’s Motion to Dismiss is GRANTED.

Facts

On May 18, 2018, Plaintiff attended a wedding held in the Museum building at the
Rockwood Preservation Society (“Rockwood”) in New Castle, Delaware.* While Plaintiff
was leaving the building and heading to the parking lot, she fell on a sidewalk.’

There is no dispute regarding Rockwood’s ownership. Nationally registered as a
historic site, Rockwood is owned by the County.*

Standard of Review

Under Superior Court Rule 12(b)(6),° the Court may dismiss a claim for failure to

state a claim upon which relief can be granted only where the plaintiff cannot recover under

any reasonable conceivable set of circumstances or facts susceptible of proof that may be

 

'10 Del. C. §§ 4010-4013.

? Def.’s Mot. to Dismiss at p. 2.

3 Id.

4 National Park Service, National Register of Historic Places, http://nps.gov/nationalregister/index.htm.
> Super. Ct. Civ. R. 12(b)(6).

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inferred from the allegations when analyzing a Motion to Dismiss under Rule 12(b)(6).
The Court accepts the well-pled allegations of the complaint as true and draws “all
reasonable inferences that logically flow from those allegations” in favor of the non-
moving party.®
Analysis

The CMTCA confers a broad grant of immunity against suits seeking damages
based on tort liability.’ Section 4011(a) provides “Except as otherwise expressly provided
by statute, all governmental entities and their employees shall be immune from suit on any
and all tort claims seeking recovery of damages.”*

Section 4011(b) deals specifically in sidewalks.’ It provides that:

(b) Notwithstanding §4012 of this title, a governmental entity
shall not be liable for any damage claims which results from:

(6) Any defect, lack of repair of sufficient railing in any highway,
townway, sidewalk, parking area, causeway, bridge, airport runway
or taxiway, including appurtenances necessary for the control of such
ways including but not limited to street signs, traffic lights and
controls park meter and guardrails.

Under the clear terms of § 4011(b), defects in sidewalk give rise to immunity in
favor of the County. However, § 4011 is subject to certain exclusions outlined in Section
4012 of the Act. In an effort to avoid the result under § 4011(b), the Plaintiff points to the
exception to immunity as outlined in § 4012(2) of the CMTCA.

Section 4012(2) provides that:

(2) In the construction, operation or maintenance of any public
building or the appurtenances thereto, except as to historic sites or

 

6 Clinton v. Enter. Rent-A-Car, 977 A.2d 892, 895 (Del. 2009).
740 Del. C. §§ 4010-4013.

® 10 Del. C. § 401 Ifa).

° 10 Del. C. § 4011(b).
buildings, structures, facilities or equipment designed for the use
primarily by the public in connection with public outdoor recreation.

Plaintiff argues that the sidewalk is an appurtenance and therefore §4012(2)
applies.!° Plaintiff's reliance on §4012(2) is misplaced. The clear language of §4012(2)
makes it clear that a historic site “...used primarily by the public in connection with public
outdoor recreation” is subject to the broad grant of immunity. The Court finds that
Rockwood is a registered historic site and used primarily by the public in connection with
public outdoor recreation. As such, the exception to immunity under §4012(2) does not
apply and the broad grant of immunity under §4011(a) applies.

Plaintiff argues that §4012(2) applies because the plaintiff, at the time of her fall,
was not using the site primarily for public outdoor recreations.!! Plaintiff would have the
Court focus on what she was actually doing (“attending a wedding”’) at the time of her fall
in analyzing the applicability of the exception to the exceptions contained in §4102. To
take such an approach would require the Court to draft language onto the immunity statute
and its exceptions that is simply not present.

This is not the first time this Court has been confronted with a situation where a
party was injured at a site primarily for public outdoor recreation while not engaging in the
outdoor activity associated with the site. In Fidance v. City of Wilmington,’* the Fidance
plaintiff attended a banquet at Porky Oliver Golf Course. While leaving the banquet hall
after attending a banquet (and not golfing), the Fidance plaintiff fell on a sidewalk outside

of the banquet hall. As in the instant case, the Fidance plaintiff was on the premises for an

 

'0 P].’s Resp. to Def.’s Mot. to Dismiss at pp. 4-5.
'' P].*s Resp. to Def.’s Mot. to Dismiss at pp. 4-5.
 Fidance v. City of Wilmington, 2017 WL 4334153 (Del. Super. 2019).

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event that was not associated with the public outdoor recreation activity. In Fidance, the
Court found that the determining factor was the nature of the property being visited and
not the reason for Plaintiffs visit. As in Fidance, the nature of the Rockwood is such that
it clearly falls within the outdoor recreations exception.

Plaintiff argues that, since the fall was caused by poor lighting, the imposition of
immunity does not apply. According to Plaintiff, this fact removes this case beyond the
grant of immunity outlined in §4011(b)(6) relating to defects in the sidewalks and falls
within the exception outlined in §4012(2). There are two problems with this argument.
First, the decision on whether to install lighting or not, and if so, how much is a
discretionary functions that is subject to immunity. !* Second, no matter what theory is used,
this case involves a sidewalk which is subject to immunity.

Keeping in mind the Delaware Supreme Court’s directive that the grant of immunity
is to be broadly cast while the exceptions to immunity are restrictive and must be narrowly
construed,!* this Court concludes that Plaintiff's claim against the County is barred by the
immunity statute.

For the reasons herein, New Castle County’s Motion to Dismiss is GRANTED.

IT IS SO ORDERED. y fe : Ao )

Francis J. Jones, Judge

“

 

Dated: July 9, 2020
Wilmington, Delaware

ce:  File&ServeXpress

 

'5 10 Del. C. § 4011(b)(3).
'4 See Garin v. City of Wilmington, 204 A.3d 112 (Table), 2019 WL 459760, *2 (Del. 2019); Moore v. Wilmington
Housing Auth., 619 A.2d 1166, 1168 (Del. 1993); Sadler v. New Castle Cty, 565 A.2d 917, 921 (Del. 1989).

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