Submitted: December 17, 2013
On Defendant John C. Whitehead's Motion to Dismiss. GRANTED.
On Plaintiff's Motion for Leave to Amend the Complaint. DENIED. On Plaintiff's Motion to Compel. MOOT.
Daniel F. McAllister, Esq., City of Wilmington Law Department, Wilmington, Delaware 19801. Attorney for Defendants John C. Whitehead, City of Wilmington, and Wilmington Police Department.
S. Harold Lakenau, Esq., Lundy Law, Wilmington, DE 19806. Attorney for Plaintiff.
CALVIN L. SCOTT JUDGE
There are three motions before the Court: Defendant John C. Whitehead's ("Whitehead") Motion to Dismiss, Chimere Shockley's ("Plaintiff") Motion for Leave of Court to File an Amended Complaint, and Plaintiff's Motion to Compel. The Court has reviewed the parties' submissions and held oral argument. For the reasons that follow, Whitehead's Motion to Dismiss is GRANTED and Plaintiff's Motion for Leave of Court to File an Amended Complaint is DENIED. Consequently, Plaintiff's Motion to Compel is rendered MOOT.
On or about December 10, 2010, Plaintiff was driving a vehicle traveling northbound on Walnut Street and approaching the 10th Street intersection in Wilmington. Defendant Officer John Whitehead ("Whitehead") was driving a vehicle registered to the Wilmington Police Department ("WPD") when he struck Plaintiff's vehicle while attempting to make a left turn from the center lane. At all relevant times, Whitehead was acting in the course and scope of his employment.
On December 11, 2012, Plaintiff, though counsel, filed a complaint against Whitehead and WPD to recover expenses related to the treatment of her injuries. In a separate count against Whitehead, Plaintiff claimed that the accident was "proximately caused by the negligent conduct of the Defendant Whitehead" based on his acts and omissions while operating the vehicle (e.g., failure to maintain a proper lookout, "operat[ing] the motor vehicle in a careless and imprudent manner in violation of 21 Del. C. [§] 4176"). Plaintiff asserted that WPD was responsible for Whitehead's negligence under the doctrine of respondeat superior.
On January 10, 2013, Whitehead and WPD answered the Complaint and filed a motion to dismiss for failure to state a claim. In the Answer, the defendants stated that the "City of Wilmington Police Department is not a separate juridical entity which may sue or be sued." In the motion to dismiss, the defendants explained that it could not be sued independently because it is a department of the City of Wilmington ("the City"). The Court issued a letter to Plaintiff informing her that she had until February 4, 2013 to respond to WPD's motion. Having received no response, the Court granted WPD's motion on March 6, 2013. 
On August 29, 2013, Whitehead moved to dismiss Plaintiff's claim, claiming immunity under the Delaware County and Municipal Tort Claims Act, 10 Del. C. § 4010, et seq. ("the Act"). Whitehead argued that, while he was acting in the course and scope of his employment, the claim against him fails because it does not allege wanton negligence or malicious intent. On November 15, 2013, Plaintiff filed her response to Whitehead's motion, a motion to amend the complaint, and a motion to compel.
In Plaintiff's response to Whitehead's motion, Plaintiff argued that the motion was premature and that she should be permitted to discover whether Whitehead's conduct amounted to gross negligence. Plaintiff further argued that the Authorized Emergency Vehicle Statute ("AEVS"), "21 Del. C. [§] 4106 [, ] provides an exception to immunity for emergency vehicles." In Plaintiff's motion to amend, Plaintiff sought to amend the complaint in order to add the City because Plaintiff "mistakenly named the incorrect entity, The Wilmington Police Department." Plaintiff explained that the City was on notice of the claim since it provided Whitehead and WPD's defense and that the City would not be prejudiced since discovery was ongoing and trial was not yet scheduled. Plaintiff failed to acknowledge that the claim against WPD ...