Submitted: May 29, 2013
Laura J. Simon, Esquire, Dalton & Associates, P.A., Wilmington, Delaware, Attorney for Plaintiff Morgan McCaffrey.
Louis B. Ferrara, Esquire, Ferrara & Haley, Wilmington, Delaware, Attorney for Defendant Michael Spencer.
Daniel F. McAllister, Esquire, City of Wilmington Law Department, Wilmington, Delaware, Attorney for Defendants City of Wilmington, Donald Bluestein, Gerald Murray, Ralph Schifano, Sherri Tull and Michael J. Szczerba.
Eric M. Davis Judge, Superior Court.
This is a personal injury and civil rights action brought by Plaintiff Morgan McCaffrey. Ms. McCaffrey seeks damages against Defendants City of Wilmington (the "City"), Patrolman Michael Spencer, Sergeant Donald Bluestein, Sergeant Gerald Murray, Corporal Ralph Schifano, Master Sergeant Sherri Tull, and Chief Michael Szczerba (collectively, "Defendants") arising from events surrounding a June 5, 2010 traffic accident. In addition to claims of negligence and recklessness against Officer Spencer, Ms. McCaffrey alleges that her constitutional rights to due process and equal protection were violated by Defendants as government actors on June 5, 2010, following a car accident she incurred with Officer Spencer while he was off-duty. Before the Court is a motion for summary judgment (the "Motion") filed by Defendants Sergeant Bluestein, Sergeant Murray, Corporal Schifano, Master Sergeant Tull, Chief Szczerba and the City. For the reasons stated herein, the Motion is GRANTED IN PART and DENIED IN PART.
Ms. McCaffrey filed her Complaint in this matter on January 19, 2012. Initially, Ms. McCaffrey asserted the following causes of action:
. Common law negligence and recklessness against Officer Spencer, the Wilmington Police Department (the "WPD") and the City (Count I);
. Civil rights violations under 42 U.S.C. § 1983 ("Section 1983") against Officer Spencer and the WPD (Count II);
. Civil rights violations under Section 1983 for the WPD's custom and policy of not enforcing the law with respect to its officers against the WPD, Sergeant Bluestein, Sergeant Murray, and Corporal Schifano (Count III);
. Negligent and reckless hiring, retention and supervision against the City and the WPD (Count IV);
. Assault and battery against Officer Spencer (Count V); and
. Intentional infliction of emotional distress against Officer Spencer, Sergeant Bluestein, Sergeant Murray, and Corporal Schifano (Count VI).
The City and the WPD moved to dismiss, in part, certain claims in the Complaint. On April 25, 2012, the Court dismissed Count I as to the City. In addition, the Court dismissed the WPD from the civil action as the WPD is not an independent entity subject to suit. On May 24, 2012, Ms. McCaffrey amended her Complaint. On June 5, 2012, Ms. McCaffrey further amended her Complaint (the "Second Amended Complaint") to add Master Sergeant Tull and Chief Szczerba as defendants.
On June 19, 2012, Defendants Sergeant Bluestein, Corporal Schifano, Sergeant Murray, Master Sergeant Tull, Chief Szczerba and the City moved to dismiss Counts V and VI as those counts related to them. The Court, on August 9, 2012, dismissed Counts V and VI of the Second Amended Complaint as those counts related to any defendant except Officer Spencer - Officer Spencer did not move or otherwise join the dismissal motion.
On October 9, 2012, Ms. McCaffrey moved for leave to amend the Second Amended Complaint. The Court denied the motion for leave to amend the Second Amended Complaint on November 19, 2012.
Certain discovery disputes subsequently arose among the parties. After considering certain legal arguments regarding discovery, the Court compelled the City to provide additional discovery by April 3, 2013. This discovery, for the most part, related to incidents involving WPD officers, since January 1, 2005 and June 6, 2006, similar to the ones involving Officer Spencer.
Presently, the following causes of action remain:
. Common law negligence and recklessness against Officer Spencer (Count I);
. Civil rights violations under 42 U.S.C. § 1983 against Officer Spencer, Sergeant Bluestein, Sergeant Murray, Corporal Schifano, and Master Sergeant Tull (Count II);
. Civil rights violations under 42 U.S.C. § 1983 for the WPD's custom and policy of not enforcing the law on its officers against the City, Sergeant Bluestein, Sergeant Murray, Corporal Schifano, Master Sergeant Tull, and Chief Michael Szczerba (Count III);
. Negligent and reckless hiring, retention and supervision against the City and Chief Michael Szczerba (Count IV);
. Assault and battery against Officer Spencer (Count V); and
. Intentional infliction of emotional distress against Officer Spencer (Count VI).
Before the Court is the Motion brought by the City, Chief Szczerba, Master Sergeant Tull, Sergeant Bluestein, Sergeant Murray, and Corporal Schifano. These moving defendants ask the Court to enter summary judgment in their favor on all remaining counts against them. Officer Spencer did not move or otherwise join the Motion.
Ms. McCaffrey and Officer Spencer were involved in a motor vehicle accident at around 2:00 a.m. on June 5, 2010, at the intersection of 2nd and Orange Streets in Wilmington, Delaware. Officer Spencer had driven 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 like to handle the matter civilly. Ms. McCaffrey agreed. Officer Spencer called the police back and said to disregard his prior call.
Officer Spencer eventually told Ms. McCaffrey he had been drinking.
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. For some reason, 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 yielded 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 with 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. 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.
WPD officers responded to Ms. McCaffrey's call and reported promptly to her apartment. These officers were Corporal Schifano, Sergeant Bluestein, Sergeant Murray, and Master Sergeant Tull. Ms. McCaffrey ...