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Banks v. Downing

Superior Court of Delaware, New Castle County

February 5, 1951

DOWNING et al.

Action by T. Earle Banks for benefit of himself and insurance carrier which paid him workmen's compensation against E. Earle Downing, and others, constituting the Public Building Commission for the City of Wilmington and for New Castle County, for damages for personal injuries sustained in accident. Defendants made a motion for summary judgment. The Superior Court, New Castle County, Carey, J., held that Public Building Commission was immune from court action.

Motion for summary judgment granted.

[46 Del. 128] Action for damages for personal injuries. Motion by defendant for summary judgment based on the complaint, answer and a stipulation.

According to the complaint, the plaintiff, a member of the Levy Court of New Castle County, was severely injured on September 28, 1948 while seated at his desk in the County Building. His injuries were caused by the falling of an electric fan and wooden frame which held the fan in place on the wall. Negligence in several respects is charged. The action was brought under 6108, Sec. 38, Revised Code of Delaware 1935 for the benefit of both the plaintiff and an insurance carrier which had paid him Workmen's Compensation.

The answer, in addition to denying negligence, avers, first, that the duties of the Public Building Commission with respect to the County Building are governmental in nature and that the State has not given its consent or permission to any suits against it; second, that the custody and management of the County Building are governmental functions for which an action will not lie; third, that payment of Workmen's Compensation to the plaintiff was improper.

The County Building, or courthouse, was erected by authority of an Act approved February 26, 1913, 27 Laws of Delaware, c. 201, p. 506, and the City Building of Wilmington was erected by virtue of an Act approved the same day, 27 Laws of Delaware, c. [46 Del. 129] 200, p. 496. They occupy an entire city block bounded by Tenth Street on the South, King Street on the West, Eleventh Street on the North and French Street on the East. Externally they present the appearance of a single U-shaped

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building; actually they are separated by a solid wall, except for a wide corridor on the first floor which extends from the ‘ City’ entrance on King Street near Tenth to the ‘ County’ entrance on King Street near Eleventh. Separate elevators serve the two. Title to the County Building is in the name of The State of Delaware for the Use of New Castle County, and title to the City Building is in the Municipal Corporation.

The Public Building Commission was created by the Legislature in 1915 by an Act now included in the Revised Code of 1935 as Article 8 of Chapter 67, Code Sections 2457 to 2464 inclusive. It is not a body corporate nor is it expressly given power to sue and be sued. One of its members is appointed by the Levy Court of the county, another by the City Council, and the third by the Governor. The members are required to take the oath prescribed by law for elective officers in the State. It is given entire charge of the County and City Buildings, and is charged with the duty of keeping and maintaining them in good repair, with their furniture and fixtures, and of seeing that they are properly furnished with heat, light and water. It is required to prepare annual separate budgets for the cost of maintaining and repairing each of them, and to present those budgets respectively to the Levy Court and the City Council.

The actual use of each building is confined, in the main, to departments, agencies and officers of the respective political subdivisions. The County Building is occupied principally by the several county courts, judges and their secretaries, a law library, and the various county offices and records-in short, a typical county courthouse. The exceptions to this statement are set forth in a stipulation filed herein.

In addition to the county offices and departments, there were [46 Del. 130] in this building on September 28, 1948, the following:

(a) 4 vending machines, dispensing soft drinks, coffee, crackers, etc., a small percentage of the receipts therefrom being divided equally between the Levy Court and the City;

(b) One or two public pay phones for which no rental was charged;

(c) Office of the Board of Boiler Rules, a state agency occupying one room, for which the County received a sum estimated as being sufficient to cover the cost of its maintenance.

(d) The Family Court, a county court, although its expenses are borne equally by the County and the City.

(e) A garage used by both City and County cars, but for which no adjustment was made in the annual budgets.

It further appears that the Public Building Commission baled and sold waste paper from all offices, the proceeds of which were divided equally between the City and County.

Henry M. Canby and Edmund N. Carpenter, II, both of the firm of Richards, Layton & Finger, of ...

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