            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                      IN AND FOR NEW CASTLE COUNTY
MORGAN MCCAFFREY,                            )
                                             )
                 Plaintiff,                  ) C.A. No.: N12C-01-138 EMD
                                             )
            v.                               )
                                             )
CITY OF WILMINGTON, PATROLMAN                ) JURY OF TWELVE DEMANDED
MICHAEL SPENCER, individually and in         )
his capacity as an officer, WILMINGTON       )
SERGEANT DONALD BLUESTEIN,                   )
individually and in his capacity as an       )
officer, SERGEANT GERALD MURRAY,             )
                                             )
individually and in his capacity as an
                                             )
officer, CORPORAL RALPH SCHIFANO,            )
individually and in his capacity as an       )
officer, MASTER SERGEANT SHERRI              )
TULL, individually and in her capacity as    )
an officer, and CHIEF MICHAEL J.             )
SZCZERBA, individually and in his            )
                                             )
capacity as an officer,

                 Defendants.



                              Submitted:    July 22, 2014
                              Decided:      November 3, 2014

  Defendants’ City of Wilmington and Chief Michael Szczerba’s Motion to Dismiss or, in the
   Alternative, for Summary Judgment on Count IV(b) of the Second Amended Complaint
                                       GRANTED

Laura J. Simon, Esquire, Dalton & Associates, P.A., Wilmington, Delaware, Attorney for
Plaintiff Morgan McCaffrey.

Daniel F. McAllister, Esquire, City of Wilmington Law Department, Wilmington, Delaware,
Attorney for Defendants City of Wilmington and Michael J. Szczerba.

DAVIS, J.
                             INTRODUCTION AND PROCEDURAL HISTORY

        This is a personal injury action brought by Plaintiff Morgan McCaffrey. Ms. McCaffrey

seeks damages against Defendants City of Wilmington (the “City”), Officer Michael Spencer, 1

Sergeant Donald Bluestein, Sergeant Gerald Murray, Corporal Ralph Schifano, Master Sergeant

Sherri Tull, and Chief Michael Szczerba arising from events surrounding a June 5, 2010 traffic

accident. Ms. McCaffrey makes claims of negligence and recklessness.

        On June 26, 2013, after briefing and a hearing, the Court granted in part and denied in

part a motion for summary judgment filed by Defendants Sergeant Bluestein, Sergeant Murray,

Corporal Schifano, Master Sergeant Tull, Chief Szczerba and the City (the “Decision”).

Through the Decision, the Court entered judgment in favor of the City, Sergeant Bluestein,

Sergeant Murray, Corporal Schifano, Master Sergeant Tull, and Chief Szczerba on all claims

asserted against these parties in Counts II, III and IV of the Second Amended Complaint.

        On July 3, 2013, Ms. McCaffrey filed a motion for reagrument contending that (1) the

defendants did not seek to dismiss, and the Court did not rule upon Ms. McCaffrey’s state tort

gross negligence and reckless retention and supervision claims; (2) the Court overlooked

controlling precedent and misapprehended the facts on the Section 1983 claims against the

defendants, as relating to the gross negligent and reckless retention and supervision claims as

well as the failure to appropriately discipline officers with alcohol-related misconduct; and (3)

that the Court misapprehended the law and facts regarding Ms. McCaffrey’s equal protection

claim against Sergeant Bluestein, Sergeant Murray, Corporal Schifano, and Master Sergeant

Tull. This Court granted reargument on the first point. After reargument, the Court allowed Ms.

McCaffrey to go forward against Chief Szczerba and the City on Ms. McCaffrey’s state tort


1
 Subsequent to the filing of this suit Patrolman Michael Spencer was promoted and will be referred to as Officer
Spencer throughout this opinion.

                                                       2
gross negligence and reckless retention and supervision claims. This Court also allowed the City

and Chief Szczerba the opportunity to move for summary judgment only on Ms. McCaffrey’s

state tort gross negligence and reckless retention and supervision claims. For clarity purposes,

the Court designated this claim as Count IV(b).

         Subsequently the City and Chief Szczerba filed Defendants’ City of Wilmington and

Chief Michael Szczerba’s Motion to Dismiss or in the Alternative, for Summary Judgment on

Count IV(b) of the Second Amended Complaint (“the Motion”). For the reasons set forth in this

opinion, the Motion is GRANTED.

                                        FACTUAL BACKGROUND

         This matter arises from a motor vehicle accident, between Ms. McCaffrey and Officer

Spencer, which occurred at around 2:00 a.m. on June 5, 2010, at the intersection of 2nd and

Orange Streets in Wilmington, Delaware.

         At the time of the accident Officer Spencer had been a member of the Wilmington Police

Department (“WPD”) for approximately two and a half years. Officer Spencer submitted his

application for employment with the WPD on May 22, 2007. 2 In the application he disclosed

that on July 10, 2004, he had a motor vehicle violation for disregarding a red light, and that on

March 9, 2007, he committed a motor vehicle violation for speeding. 3 While certain minimum

qualifications are required to join the WPD, no rules or policies require the hiring of a specific

officer. 4 Nor do policies or regulations dictate when new officers are hired, or how many are

hired. 5 The WPD has discretion with respect to this function. 6 Chief Szczerba approved all new

hires.


2
  WPD Application, Defendants’ Brief in support of their Motion for Summary Judgment, Appendix, A-266-269.
3
  Id. at A-278.
4
  Defendants’ Reply in Support of their Motion, pg. 8.
5
  Id.

                                                     3
         Officer Spencer began his employment with the WPD in January 2008 as a “Probationary

Patrol Officer.” Like all new officers he had to complete an eighteen-month probationary period

to demonstrate his “fitness for continued employment” before he was officially hired as a Patrol

Officer. 7 During this probationary period Officer Spencer was reprimanded and punished for

two alcohol-related incidents. On September 13, 2008, Officer Spencer did not show up for

work, and he later testified that he did not go to work because he had been out late, drinking the

night before. 8 Around November 2008, Officer Spencer admitted to drinking and driving with

his gun. 9 Despite these infractions, the WPD determined that Officer Spencer successfully

completed his probationary period in June 2009.

         Subsequent to the completion of the probationary period, on April 4, 2010, Officer

Spencer was disciplined for failing to contact his direct supervisor after being involved in a

motor vehicle accident after drinking alcohol. 10

         Two months after that incident, at around 2:00 a.m. on June 5, 2010, at the intersection of

2nd and Orange Streets in Wilmington, Delaware, Officer Spencer drove through a red light and

struck Ms. McCaffrey’s vehicle on the rear passenger side, pushing it into a fire hydrant. Prior to

the accident, Officer Spencer had been drinking at a “Beef n Brew” at Catherine Rooney’s pub.

         Officer Spencer called 911 to report the accident. Ms. McCaffrey heard him speaking in

police terms. Shortly after that, Officer Spencer showed Ms. McCaffrey his identification card

and explained to her that he was a police officer. After waiting some time for the police to arrive

in response to Officer Spencer’s call, Officer Spencer asked Ms. McCaffrey whether she would



6
  Id.
7
  Plaintiff’s Opposition to the Motion, pg. 3.
8
  Plaintiff’s Exhibit A of the Motion, OPS transcript dated June 10, 2010.
9
  Plaintiff’s Exhibit B of the Motion, OPS investigation dated October 21, 2008.
10
   Plaintiff’s Exhibit C of the Motion, Deposition of Captain Victor Ayala at 11.

                                                          4
like to handle the matter civilly. Ms. McCaffrey agreed. Officer Spencer called the police back

and said to disregard his prior call. Officer Spencer told Ms. McCaffrey he had been drinking.

       At the scene of the accident, Officer Spencer placed his hands on Ms. McCaffrey’s back

and kissed her on the lips. Ms. McCaffrey backed away from him. Officer Spencer asked Ms.

McCaffrey where she lived, and she responded that she lived close by. Officer Spencer advised

that they should move their vehicles there to get them off the roadway.

       Upon parking the vehicles near Ms. McCaffrey’s home, Officer Spencer removed items

from his glove box, including his gun, magazine and badge. Officer Spencer asked Ms.

McCaffrey to hold them for him. Officer Spencer then asked to go into Ms. McCaffrey’s

apartment to talk about the accident. Ms. McCaffrey agreed to his request.

       After entering Ms. McCaffrey’s apartment, Ms. McCaffrey went into her bathroom.

When she came out, Officer Spencer was in basketball shorts. Officer Spencer patted the bed in

an invitation for Ms. McCaffrey to sit down next to him. When Ms. McCaffrey did, Officer

Spencer asked whether she wanted to have sex. Ms. McCaffrey stated that she did not. After her

response, Officer Spencer straddled Ms. McCaffrey and asked again whether she wanted to have

sex. Ms. McCaffrey again refused. Ms. McCaffrey rose and returned to the bathroom for five to

seven minutes. When she exited the bathroom, Officer Spencer was asleep in Ms. McCaffrey’s

bed. Ms. McCaffrey then left her apartment, and went to a friend’s home where she called the

WPD at 3:52 a.m.

       Sergeant Bluestein, Sergeant Murray, Corporal Schifano, and Master Sergeant Tull

responded to Ms. McCaffrey’s call and reported promptly to her apartment. Ms. McCaffrey gave

the responding officers Officer Spencer’s gun and other items.




                                                5
       In response to Ms. McCaffrey’s report that Officer Spencer was drunk, one officer told

Ms. McCaffrey “He’s harmless; he’s drunk.” The officers questioned Ms. McCaffrey in a way

that indicated that the officers were unsympathetic to Ms. McCaffrey’s concerns and fears. It

also appears that the officers did not believe Ms. McCaffrey’s version of events because she was

female and Officer Spencer was male and a WPD officer. The officers woke Officer Spencer up

to remove him from Ms. McCaffrey’s apartment. As the “investigation” proceeded, Master

Sergeant Tull called Captain Dietz three times because she wanted to administer DUI testing.

Captain Dietz told her no all three times, at 4:29 a.m., 5:04 a.m., and 5:26 a.m.

       Officer Spencer was taken to Wilmington Hospital at 5:00 a.m. He was cleared for

injuries and released at 5:39 a.m.

       At 7:15 a.m., Corporal Schifano questioned Officer Spencer about the incident. Officer

Spencer refused to cooperate but eventually agreed to perform field tests and passed all of the

tests, although he had no memory of performing them due to his intoxication.

                                     PARTIES’ CONTENTIONS

       In the Motion, the City raises three arguments for dismissal or in the alternative summary

judgment. First, the City argues that Ms. McCaffrey cannot show that her automobile accident

involving Officer Spencer gave rise to liability on the part of the City or Chief Szczerba because

Officer Spencer was driving his personal vehicle and was not going to or coming from work.

The City, therefore, contends that the City could not have exercised control over Officer

Spencer, that neither the City nor Chief Szczerba was aware of any reasonable opportunity to do

so, and, as such, were not the proximate cause of any injuries allegedly suffered by Ms.

McCaffrey.




                                                 6
           Second, the City argues that the City is immune from Ms. McCaffrey’s claims of grossly

negligent and reckless hiring, supervision and retention under the County and Municipal Tort

Claims Act. (“the Act”). 11

           Third, the City contends that the claim against Chief Szczerba must be dismissed because

Ms. McCaffrey cannot show that Chief Szczerba acted with gross negligence or recklessness in

hiring, retaining or supervising Officer Spencer, or that the hiring, retention or supervision of

Officer Spencer resulted in property damage or bodily harm.

           In response to the City’s first argument, Ms. McCaffrey contends that she can show that

her injuries from Officer Spencer gave rise to liability on the part of the City and Chief Szczerba,

because the City and Chief Szczerba had notice of troubling incidents with Officer Spencer.

           Ms. McCaffrey next argues that the City is not immune under the Act from the claims of

negligent and grossly negligent and reckless hiring, supervision and retention, because these acts

were not discretionary, and because Officer Spencer used the chattel given to him by the City

during the incident. 12

           Finally, Ms. McCaffrey claims that Chief Szczerba acted with gross negligence and

recklessness that resulted in property damage and bodily harm to Ms. McCaffrey.

           The Court holds that the Act applies to the actions of the City and Chief Szczerba. The

Court further concludes that, under the Act, the City and Chief Szczerba are immune from Ms.

McCaffrey’s claims of gross negligence and recklessness in the hiring, supervision and retention

of Officer Spencer. Because the Court holds that the Act applies, the Court does not address the

other contentions made by the parties.




11
     10 Del. C. § 4010-13.
12
     The chattel mentioned by Ms. McCaffrey is Officer Spencer’s gun, badge and ammunition.

                                                         7
                                           STANDARD OF REVIEW

        The standard of review on a motion for summary judgment is well-settled. The Court’s

principal function when considering a motion for summary judgment is to examine the record to

determine whether genuine issues of material fact exist, “but not to decide such issues.” 13

Summary judgment will be granted if, after viewing the record in a light most favorable to a non-

moving party, no genuine issues of material fact exist and the moving party is entitled to

judgment as a matter of law. 14 If, however, the record reveals that material facts are in dispute,

or if the factual record has not been developed thoroughly enough to allow the Court to apply the

law to the factual record, then summary judgment will not be granted. 15 The moving party bears

the initial burden of demonstrating that the undisputed facts support the claims or defenses. 16 If

the motion is properly supported, then the burden shifts to the non-moving party to demonstrate

that there are material issues of fact for resolution by the ultimate fact-finder. 17

                                                  DISCUSSION

     A. Applicable Statutes

        Sections 4011 and 4012 of title 10 of the Delaware Code apply in this situation. Section

4011, in relevant part, provides:

         (a) 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 from damages. That a governmental entity has the power to sue or be
        sued, whether appearing in its charter or statutory enablement, shall not create or
        be interpreted as a waiver of the immunity granted in this subchapter.

13
   Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del .1992) (internal citations omitted); Oliver B. Cannon
& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. Ct.1973).
14
   Id.
15
   Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); See also Cook v. City of Harrington, 1990 WL 35244,
I.D. No. 89C-FE-21 at *3 (Del. Super. Ct., Feb. 22, 1990) (citing Ebersole, 180 A.2d at 467) (“Summary judgment
will not be granted under any circumstances when the record indicates ... that it is desirable to inquire more
thoroughly into the facts in order to clarify the application of law to the circumstances.”).
16
   Moore v. Sizemore, 405 A.2d 679, 680 (Del.1979) (citing Ebersole, 180 A.2d at 470).
17
   See Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).

                                                         8
        (b) Notwithstanding § 4012 of this title, a governmental entity shall not be liable
       for any damage claim which results from:

                                                  ***

                (3) The performance or failure to exercise or perform a discretionary
               function or duty, whether or not the discretion be abused and whether or
               not the statute, charter, ordinance, order, resolution, regulation or resolve
               under the discretionary function or duty is performed is valid or invalid.

                                                  ***

        (c) An employee may be personally liable for acts or omissions causing
       property damage, bodily injury or death in instances in which the governmental
       entity is immune under this section, but only for those acts which were not within
       the scope of employment or which were performed with wanton negligence or
       willful and malicious intent.

       At the hearing on the Motion, the parties made arguments with respect to whether Section

4012 applies. Section 4012 provides, in relevant part, as follows:

       A governmental entity shall be exposed to liability for its negligent acts or
       omissions causing property damage, bodily injury or death in the following
       instances:
                                              ***
              (1) In its ownership, maintenance or use of any motor vehicle, special
              mobile equipment, trailer, aircraft or other machinery or equipment,
              whether mobile or stationary.

       The Court finds, and the parties do not seem to dispute, that the City is a governmental

entity for purposes of the Act. Moreover, the facts of this case demonstrate that Chief Szczerba

is an employee of the City and that Chief Szczerba was acting within the scope of his

employment when he purportedly acted or failed to act in a manner that would make him liable

to Ms. McCaffrey for her purported physical injuries. The two questions that need to be

answered, therefore, are: (1) were the complained of acts discretionary and, if discretionary, (2)

did Chief Szczerba perform his purported acts or omissions in a manner that is wantonly

negligent or with willful and malicious intent.



                                                   9
     B. The actions of the City, and Chief Szczerba, are immune under the Act because
        those actions are discretionary.

        This Court will first address the City’s immunity argument. The City is seeking

immunity under Section 4011 of the Act, 18 which reads that “[e]xcept as otherwise expressly

provided by statute all governmental entities and their employees shall be immune from suit on

any and all tort claims.” 19 While several exceptions to immunity are listed in Section 4012 of the

Act, notwithstanding those exceptions an entity shall not be liable for any damage claim which

results from “[t]he performance or failure to perform a discretionary function or duty.” 20

Whether a duty is ministerial or discretionary is normally a question of law. 21

        The City contends that the decisions related to the hiring, retention and supervision of

Officer Spencer were discretionary. Accordingly, the City contends this makes the City immune

from any liability arising out of the hiring, retention or supervision of Officer Spencer.

        The Delaware Supreme Court has held that the “immunity granted to discretionary acts

does not extend to every circumstance in which some element of choice is involved.” 22 For

example, in Sussex County v. Morris, 23 the Supreme Court of Delaware examined the scope of

immunity conferred upon a county official under the Act. The appellee sustained injuries when a

Sussex County constable conveyed the appellee to the Delaware State Hospital in the constable’s

own automobile. 24 The appellee filed suit against Sussex County. 25 Sussex County asserted that


18
   10 Del. C. § 4010-13.
19
   10 Del. C. § 4011(a).
20
   10 Del. C. § 4011(b)(3); See Heaney v. New Castle County, 672 A.2d 11, 14 (Del. 1995).
21
   See, e.g., Simms v. Christina School Dist., C.A. No. 02C-07-043, 2004 WL 344015, *8 (Del. Super. Jan. 30,
2004).
22
   Sussex County v. Morris, 610 A.2d 1354, 1359 (Del. 1992).
23
   Id. at 1354.
24
   Id. at 1355.

                                                       10
it was immune from any liability for the appellee’s injuries under the Act, because the

constable’s actions were discretionary. 26 According to Sussex, the constable made a number of

discretionary decisions in transporting the appellee that caused the appellee’s injuries. 27 For

example, the constable chose to handcuff the appellee in the front as opposed to the back and

used a car with back doors that could be unlocked and opened from the inside. 28

         The Court disagreed with Sussex County, and used the term “ministerial” to describe

those acts which may involve an insignificant element of choice, but which the legislature has

not insulated from immunity under the Act. 29 The Court considered the actions of the constable

ministerial in nature. 30

         The Court adopted the definition of “ministerial” from the Restatement (Second) of Torts

which states that 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 of

importance upon the validity of the act.” 31 The distinction between discretionary and ministerial

acts “is always one of degree. Ministerial acts are those done by officers and employees who are


25
   Id. at 1356.
26
   Id.
27
   Id.
28
   Id.
29
   Id.
30
   Id.
31
   Restatement (Second) of Torts § 895D, Comment h (1979). By contrast, the Restatement (Second) of Torts says
the following about discretionary functions in Comment b: “The complex process of the administration of
government requires that officers and employees be charged with the duty of making decisions, either of law or of
fact, and of acting in accordance with their determinations. It has traditionally been explained by the courts that
public officers and employees would be unduly hampered, deterred and intimidated in the discharge of their duties,
and as a result undesirable shackles would be imposed upon agencies of government, if those who act improperly or
even exceed the authority given them were not protected in some reasonable degree by being relieved from private
liability. The basis of the immunity has been not so much a desire to protect an erring officer as it has been
recognition of the need of preserving independence of action without deterrence or intimidation by the fear of
personal liability and vexatious suits. This, together with the manifest unfairness of placing any person in a position
in which he is required to exercise his judgment and at the same time is held responsible according to the judgment
of others, who may have no experience in the area and may be much less qualified than he to pass judgment in a
discerning fashion or who may now be acting largely on the basis of hindsight, has led to a general rule that tort
liability should not be imposed for conduct of a type for which the imposition of liability would substantially impair
the effective performance of a discretionary function.”

                                                          11
required to carry out the orders of others or to administer the law with little choice as to when,

where, how or under what circumstances their acts are to be done. Examples of acts held to be

ministerial under ordinary circumstances are the preparation of ballots, the registration of voters,

the recording of documents and filing of papers, the care of prisoners, the driving of vehicles, the

repair of highways, [and] the collection of taxes.” 32 When the Court applied those principles it

concluded that the constable’s decision to use his personal car to transport the appellee, and to

handcuff the appellee in the front were ministerial acts. 33 The constable was empowered by

Sussex County to transport mentally ill patients. 34 The validity of the constable’s authority was

not at issue and is entirely distinct from any personal decision the constable made respecting his

choice of motor vehicle. 35 The Court pointed out that the Restatement (Second) of Torts

enumerates many acts that ordinarily are considered ministerial, such as the care of prisoners. 36

        This distinction between discretionary and ministerial acts was also elaborated on in

Sadler v. New Castle County. 37 In Sadler, the appellant was injured when he accidentally fell

over Brandywine Falls and struck his head on the rocks. 38 The accident victim sued New Castle

County, claiming that his rescuers, who were all county employees, were negligent in selecting

unduly hazardous means to remove him from the river, thus aggravating his injuries. 39 The

Delaware Supreme Court affirmed the trial court's ruling that the rescuers' decision to carry

Sadler across the river, rather than up a cliff, was purely a discretionary decision and, therefore,

immune from liability under §4011(b)(3) of the Act. 40 The Court found that the rescuers’


32
   Restatement (Second) of Torts § 895D, Comment h.
33
   Sussex County, 610 A.2d at 1359.
34
   Id.
35
   Id.
36
   Id.
37
   Sadler v. New Castle County, 565 A.2d 917 (Del. Super. 1989).
38
   Id. at 919.
39
   Id. at 920.
40
   Id. at 919.

                                                       12
discretionary decisions on how to conduct the rescue were entirely distinct from the ministerial

decision of which rescue equipment to use. In other words, it was the decision on how to

conduct the rescue that caused the injuries, which led to New Castle County being immune. 41

         Likewise, in this case, the WPD selects when to hire new officers, and who to hire.

There are no policies regarding this, except to lay out minimum qualifications. The WPD selects

the means by which to supervise officers during a probationary period. The WPD also selects

what discipline, if any, to subject an officer to after infractions. As stated above, ministerial acts

are those done by officers and employees who are required to carry out the orders of others or to

administer the law with little choice as to when, where, how or under what circumstances their

acts are to be done. Here, the record demonstrates that the WPD (i.e., the City) has a great deal

of choice as to when, where, how or under what circumstances it acts to hire, retain and

supervise the City’s police officers. This “freedom” to act makes the decision to hire, retain and

supervise the City’s police officers a discretionary act and not a ministerial act. Therefore, the

decisions to hire, retain, and supervise Officer Spencer were discretionary functions, and the City

is immune from liability under the Act. 42

     C. The purported acts or omissions of Chief Szczerba do not constitute wanton
        negligence or willful and malicious intent. 43

         Section 4011(c) of the Act states that “[a]n employee may be personally liable for acts or

omissions causing property damage, bodily injury or death in instances in which the

governmental entity is immune under this section, but only for those acts which were not within

the scope of employment or which were performed with wanton negligence or willful malicious

41
   Sussex County, 610 A.2d at 1359.
42
   See, e.g., Tews v. Cape Henlopen School Dist., C.A. No. 12C-08158, 2013 WL 1087580, *3-5 (Del. Super. Feb.
14, 2014); Simms, 2004 WL 344015, *8.
43
   Ms. McCaffrey contends that she was injured during the incident with Officer Spencer; however, no proof of the
injury was submitted to the Court. As was discussed at the hearing on the Motion, the Court, for the purpose of this
analysis, will assume that Ms. McCaffrey has suffered some form of damage – body or property.

                                                         13
intent.” Accordingly, the Act provides that Chief Szczerba could still be liable even in a

situation where the Act would provide the City with immunity from suit. For Chief Szczerba to

be liable, however, Chief Szczerba would have to be acting outside his scope of employment, or

if he acted with wanton negligence or with willful malicious intent.

        It is clear that any allegations against Chief Szczerba’s hiring, retention and supervision

of Officer Spencer are within Chief Szczerba’s scope of employment.                 There are also no

allegations and nothing in the factual record to suggest that Chief Szczerba acted with willful

malicious intent. The only prong under which this matter could still be analyzed is wanton

negligence.

        The Court notes that Ms. McCaffrey does not plead wanton negligence in her complaint,

but rather gross negligence. Wanton negligence is a higher standard than gross negligence, 44 and

under an allegation of gross negligence, the claims against Chief Szczerba would clearly be

dismissed. However, in the interest of judicial economy we will also address Court IV(b) as

asserting a claim for wanton negligence.

        Wanton negligence is a term of art, and although not defined in the statute, the issue of

whether wanton negligence exists is to be determined by the facts and circumstances of each

particular case. 45 Wanton negligence requires behavior which is more egregious than conduct

constituting gross negligence. 46 Wantonness does not necessarily imply any intent to cause

harm. 47 Rather, wanton conduct occurs when a person with no intent to cause harm, performs an

act so unreasonable and dangerous that he knows or should know that there is an eminent



44
   Morris v. Blake, 552 A.2d 844, 847 (Del. Super. 1988).
45
   Id.
46
   Id.
47
    Vannicola v. City of Newark, No. 07c-03-040 JOH, 2010 WL 5825345 at * 9 (Del. Super., Dec. 21, 2010);
Morris, 552 A.2d at 848.

                                                   14
likelihood of harm which can result. 48 It is demonstrated by a conscious indifference evidencing

an “I-don’t-care attitude.” 49

        In Morris v. Blake, the plaintiff asserted that the defendant, a constable charged with

transporting the plaintiff, engaged in wanton conduct through the following factors: the constable

failed to read the commitment papers; the constable knew that the plaintiff was intoxicated but

did not engage in his usual practice of cuffing the patient with his hand behind his back allowing

the patient to open the door of the vehicle and jump out; the constable used his personal vehicle,

which he knew was not suitable for transporting patients; the constable also failed to take

precautions when the plaintiff advised him that he intended to commit suicide. 50 The constable

moved for summary judgment. The Court denied the motion, stating that it was not persuaded

that the facts permit reasonable persons to draw by one inference adverse to the plaintiff. 51

        In Vannicola v. City of Newark, the Court found that enough evidence existed that could

lead a reasonable person to conclude that a police officer acted with wanton negligence. 52 At the

time of the arrest, the officer was informed by the plaintiff that he had recently had surgery on

his neck. 53 The officer observed sutures from the surgery on the plaintiff’s neck. 54 Despite this

information the officer handcuffed the plaintiff with his hands behind his back, although she

knew that such a position placed pressure on the plaintiff’s neck. 55 The officer also roughly

pressed down on the plaintiff’s neck, as she shoved him into the police vehicle. 56 As a result the




48
   Morris, 552 A.2d at 848.
49
   Id.
50
   Id.
51
   Id.
52
   Vannicola, 2010 WL 5825345 at * 11.
53
   Id. at * 3.
54
   Id.
55
   Id.
56
   Id.

                                                 15
plaintiff’s injury was aggravated and he required additional neck surgery. 57 Her apparent “I-

don’t-care attitude” toward the plaintiff’s injury led the court to conclude that a jury could find

wanton negligence on the officer’s part, and the officer’s motion for summary judgment was

denied. 58

        In this case, Chief Szczerba was in charge of the day to day operations of the department.

He approved all new hires and was informed when officers were disciplined for misconduct. It

follows that Chief Szczerba was aware that Officer Spencer disclosed in his application that he

had a motor vehicle violation for disregarding a red light, and a motor vehicle violation for

speeding. Chief Szczerba would also have known that during the probationary period Officer

Spencer was punished for two alcohol-related incidents, and admitted to drinking and driving

with his gun. Despite being aware of these facts, Chief Szczerba allowed Officer Spencer to

continue in his position as a patrolman.

        The record also indicates that the WPD did take action with respect to Officer Spencer’s

conduct. On September 13, 2008, Officer Spencer did not show up for work, and he later

testified that he did not go to work because he had been out late, drinking the night before. 59

Around November 2008, Officer Spencer admitted to drinking and driving with his gun. 60 The

WPD reprimanded and punished Officer Spencer for these two alcohol-related incidents.

Despite these infractions, however, the WPD, exercising its discretion, determined that Officer

Spencer successfully completed his probationary period in June 2009. Subsequently to the

completion of the probationary period, on April 4, 2010, Officer Spencer was involved in a

motor vehicle accident after drinking alcohol and failed to contact his direct supervisor


57
   Id.
58
   Id. at *10.
59
   Plaintiff’s Exhibit A of the Motion, OPS transcript dated June 10, 2010.
60
   Plaintiff’s Exhibit B of the Motion, OPS investigation dated October 21, 2008.

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afterwards with respect to this accident. Once again, the WPD disciplined Officer Spencer for

the incident and failing to contact his direct supervisor. 61

            With these facts, an argument can perhaps be made that Chief Szczerba was negligent.

However, on these facts it is clear that Chief Szczerba did not take an “I-don’t-care attitude”

toward potential conduct by Officer Spencer. The facts demonstrate that the WPD took steps to

reprimand and otherwise discipline Officer Spencer. These steps were not enough to prevent

Officer Spencer’s subsequent conduct as to Ms. McCaffrey but these step help demonstrate that

Chief Szczerba did not evidence conscious indifference evidencing an “I-don’t-care attitude” as

to Officer Spencer. Therefore, this Court finds that Chief Szczerba’s decision to allow Officer

Spencer to continue in his position does not rise to the level of wanton negligence as that term is

used in connection with the Act.

                                                     CONCLUSION

           Based on the arguments above, drawing all reasonable inferences based on the facts

alleged in Ms. McCaffrey’s favor, the Defendants’ City of Wilmington and Chief Michael

Szczerba’s Motion for Summary Judgment on Count IV(b) of the Second Amended Complaint is

hereby GRANTED.

           IT IS SO ORDERED.

                                                        /s/ Eric M. Davis
                                                        Eric M. Davis
                                                        Judge




61
     Plaintiff’s Exhibit C of the Motion, Deposition of Captain Victor Ayala at 11.

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