CHARLES HALE and ANNE HALE, individually and on behalf of their minor daughter, ZOEY HALE, 1 Plaintiffs,
ELIZABETH W. MURPHEY SCHOOL, INC., Defendant/Third-Party Plaintiff,
CAPITAL SCHOOL DISTRICT AND DOVER HIGH SCHOOL, Third-Party Defendants.
Submitted: February 20, 2014
Upon Third-Party Defendants' Motion to Dismiss, DENIED.
Richard R. Weir, Jr., Esquire, Shannon Larner Brainard, Esquire, Marshall, Dennehey, Warner, Coleman & Coggin, Wilmington, Delaware, Attorneys for Defendant/Third-Party Plaintiff.
Marc S. Casarino, Esquire, Sean A. Meluney, Esquire, White and Williams, LLP, Wilmington, Delaware, Attorneys for Third-Party Defendants.
Paul R. Wallace, Judge
I. Introduction 
Before the Court is a motion to dismiss Elizabeth W. Murphey School, Inc.'s ("Murphey School") third-party complaint against the Capital School District ("the District") and Dover High School ("the High School") alleging failure to adequately supervise Dover High School students. "John Doe" ("Doe"), a minor and Dover High School student, lured Zoey Hale ("Zoey"), a minor and fellow Dover High School student from school grounds to a secluded wooded area and sexually assaulted her at knifepoint. At the time of the assault, Doe was a resident of the Murphey School, an institute that provided care and counseling for dependant and neglected minors. Zoey is developmentally disabled, requiring special education assistance. Zoey and her parents, Charles Hale and Anne Hall, filed suit against the Murphey School for failure to properly warn of Doe's "sexual deviance, " and for failure to supervise and control Doe.
The Murphey School in turn filed a third-party complaint against the Capital School District and Dover High School for failure to adequately supervise Zoey and Doe to prevent the assault. The District and High School filed a motion to dismiss alleging pleading failures and immunity under the Delaware Tort Claims Act, Del. Code Ann. tit. 10, § 4001 et seq. For the reasons stated below, the District's and High School's motion to dismiss is DENIED.
II. Factual and Procedural Background
Plaintiffs Charles Hale and Anne Hale are Zoey's parents and natural guardians. Zoey, the Minor-Plaintiff, was at all relevant times 16 years old. She is developmentally disabled, with an IQ between 48 and 52, and requires special needs including, among other things, special educational assistance and a special curriculum. Zoey was enrolled in the Capital School District's Individualized Education Program and was attending classes at Dover High School, a public school located in Dover, Delaware.
Defendant/Third-Party Plaintiff Elizabeth W. Murphey School, Inc. provides foster care, counseling, and in-house treatment for minors suffering with dependency and neglect issues. Murphey School provided Doe such care and counseling. He too, for all relevant times, was a minor and was enrolled at Dover High School.
At the High School, the school day would end upon dismissal at 2:20 p.m. Zoey typically rode a school bus, leaving Dover High School at 2:30 p.m. and arriving home by 2:45 p.m.
On April 30, 2012, Mr. Hale received a text message at approximately 2:30 p.m. from Zoey's sister that Zoey was not on the school bus. Mr. Hale telephoned the High School to inform the administrators of the situation. He then drove there. When he arrived at the High School's main office, Mr. Hale met Zoey's printing shop teacher who told him that Zoey had been in the print shop for her last class and that the teacher had seen her leave class at dismissal time. Mr. Hale then met with Zoey's homeroom teacher who suggested that he speak to other students to determine if they had witnessed anything. A student told Mr. Hale that Zoey was seen leaving the building with Doe. High School staff advised Mr. Hale that Doe should be in detention, that he was scheduled to be on a 4:00 p.m. bus back to the Murphey School, and that he frequently ran away.
Mr. Hale immediately left the High School for Murphey School's campus. Police officers arrived at the Murphey School just as Mr. Hale did. He overheard a Murphey School employee tell a police officer that Doe is known to shoplift, skip school, and hang out at the Dover Mall. Mr. Hale then enlisted Dover Mall security's assistance to locate Zoey. A security officer found Zoey at the mall. When the officer approached her, a young male standing nearby gave some name and fled the scene. Zoey ...