BERTHA A. BEESLY and RANDALL K. BEESLY, Plaintiffs,
ALEXANDER P. MILLER, Defendant/Third-Party Plaintiff,
THE CITY OF DOVER, a municipal corporation, Third-Party Defendant.
Submitted: March 7, 2014
Upon Third-Party Defendant's Motion to Dismiss.
Charles E. Whitehurst, Jr., Esquire of Young Malmberg & Howard, P.A., Dover, Delaware; attorney for Plaintiffs.
Tracy L. Warga, Esquire of Weber Gallagher Simpson Stapleton Fires & Newby, LLP, Dover, Delaware; attorney for Defendant/Third-Party Plaintiff.
Daniel A. Griffith, Esquire and Chad J. Toms, Esquire of Whiteford Taylor & Preston, LLC, Wilmington, Delaware; attorney for Third-Party Defendant.
William L. Witham, Jr. Resident Judge
The issue before the Court is whether the Third-Party Defendant is entitled to dismissal of the Third-Party Complaint on grounds of immunity under the Delaware County and Municipal Tort Claims Act.
The following facts are taken from the allegations in the Complaint and Third-Party Complaint.
Plaintiffs Bertha A. Beesly (hereinafter "Bertha") and Randall K. Beesly (collectively "Plaintiffs") have filed a negligence claim against Defendant/Third-Party Plaintiff Alexander P. Miller (hereinafter "Miller"). Plaintiffs allege that on December 14, 2011 Bertha was walking in a crosswalk on South State Street in Dover when Miller struck Bertha with his vehicle. Bertha seeks recovery from Miller for various injuries she allegedly suffered as a result of the accident. Bertha's husband has filed a loss of consortium claim against Miller as well.
Miller denies he was negligent and has raised a variety of defenses to Plaintiffs' complaint. Miller has also filed a Third-Party Complaint asserting a contribution claim against the City of Dover (hereinafter "the City"). Miller asserts that it was dark outside when Bertha was using the crosswalk, and that the City was negligent "by failing to install, operate, repair, or otherwise maintain its lighting equipment, specifically the street light at the pedestrian crosswalk on South State Street. . .sufficiently to provide adequate lighting for pedestrians to safely cross [the street]." The street light in question is attached to an electrical utility pole. Miller seeks contribution from the City if Miller is found to be liable for Plaintiffs' damages.
On February 17, 2014, the City filed the instant motion to dismiss the third-party complaint. The City claims immunity under the Delaware County and Municipal Tort Claims Act (hereinafter "the Act"). The City contends that any decision regarding the nature and adequacy of street lighting is a discretionary function entitled to immunity under the Act. The City further argues that the equipment exception of 10 Del. C. § 4012(1) does not apply merely because the street light on South State Street was affixed to an electrical pole. The City, citing to several decisions of the Delaware Supreme Court, urges this Court to narrowly construe the equipment exception and find that it does not apply in the instant case.
Miller argues that the utility pole would fall within the equipment exception. Miller contends that it follows that, because the street light is attached to the pole and because there is "electrical power constantly flowing to it" through the electrical power lines, the ...