Maureen Jordan and Nina Jordan, a minor, by and through Maureen Jordan, Guardian Ad Litem and Next Friend
Indian River School District and Lisa A. McVey,
Date Submitted: April 16, 2014
Craig A. Karsnitz, Esquire Young Conaway Stargatt & Taylor, LLP
Brian L. Kasprzak, Esquire Marc Sposato, Esquire Marks, O'Neil, O'Brien, Doherty & Kelley, P.C.
In this civil action Plaintiffs Maureen Jordan and Nina Jordan seek damages for the personal injuries Plaintiff Nina allegedly sustained while she was a student at Defendant Indian River School District. At the time of the events of this case, Defendant Lisa A. McVey was employed as a teacher at Southern Delaware School of the Arts, Indian River School District. Defendants have moved to dismiss the Complaint pursuant to Superior Court Civil Rule 12(b)(6) ("Rule 12(b)(6)"), on the grounds that the facts pled fail to overcome the immunity granted to Defendants under Delaware's State Tort Claims Act ("STCA"), 10 Del. C. § 4001.
The facts are taken from the Complaint. On or about October 22, 2012, Plaintiff Nina, a minor, was a student of the Southern Delaware School of the Arts, Indian River School District. On this date, Plaintiff Nina "competed" in Defendant McVey's class experiment ("the experiment"), recreating The Titanic accident. The experiment consisted of placing a hand up to the mid-forearm in ice water for as long as one was able to withstand the cold temperature. Plaintiff Nina held her right hand and arm in the ice water for approximately forty minutes. Upon removing her hand from the water, she noticed numbness and tingling, as well as a lack of sensation in the hand. The Complaint alleges the experiment was ill-advised and not properly supervised by Defendant McVey. As a result, Plaintiff Nina has sustained serious and permanent injuries to her right upper extremity.
STANDARD OF REVIEW
When considering a defendant's motion to dismiss pursuant to Rule 12(b)(6), the Court must determine whether the claimant "may recover under any reasonably conceivable set of circumstances susceptible of proof." The Court must accept as true all non-conclusory, well-pled allegations. Every reasonable factual inference will be drawn in favor of the non-moving party. Lastly, the Court must deny the motion unless the plaintiff could not recover under any reasonably conceivable set of circumstances susceptible of proof.
First, Defendants argue Plaintiffs' Complaint must be dismissed pursuant to Rule 12 (b)(6) because the allegations set forth in the Complaint are conclusory and lack factual support. Specifically, the Complaint fails to sufficiently plead facts demonstrating any gross negligence. Plaintiffs' [C]omplaint largely is a recitation of conclusory allegations with no factual support, of the kind this Court routinely and recently has found insufficient to overcome the immunity provided by the STCA."
Further, Plaintiffs fail to set forth any facts to support their claim that Defendants' conduct was an extreme departure from the ordinary standard of care."There simply are no facts alleged supporting a finding that the teacher or school district here were aware of some substantial and unjustifiable risk relative to having a student participate in this experiment."
Lastly, Defendants argue that their actions in conducting the experiment were discretionary and performed in good faith. "Decisions of teachers in managing classrooms are discretionary, and therefore protected under the STCA."Additionally, "there has been no allegation of some policy, directive, or any other factual circumstance taking the teacher's discretion in how to ...