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McCaffrey v. City of Wilmington

Superior Court of Delaware, New Castle

November 3, 2014

MORGAN MCCAFFREY, Plaintiff,
v.
CITY OF WILMINGTON, PATROLMAN MICHAEL SPENCER, individually and in his capacity as an officer, WILMINGTON SERGEANT DONALD BLUESTEIN, individually and in his capacity as an officer, SERGEANT GERALD MURRAY, individually and in his capacity as an officer, CORPORAL RALPH SCHIFANO, individually and in his capacity as an officer, MASTER SERGEANT SHERRI TULL, individually and in her capacity as an officer, and CHIEF MICHAEL J. SZCZERBA, individually and in his capacity as an officer, Defendants.

Submitted: July 22, 2014.

Laura J. Simon, Esquire, Dalton & Associates, P.A., Wilmington, Delaware, Attorney for Plaintiff Morgan McCaffrey.

Daniel F. McAllister, Esquire, City of Wilmington Law Department, Wilmington, Delaware, Attorney for Defendants City of Wilmington and Michael J. Szczerba.

JURY OF TWELVE DEMANDED

ERIC M. DAVIS, Judge.

Introduction and Procedural History

This is a personal injury action brought by Plaintiff Morgan McCaffrey. Ms. McCaffrey seeks damages against Defendants City of Wilmington (the "City"), Officer Michael Spencer, [1]Sergeant Donald Bluestein, Sergeant Gerald Murray, Corporal Ralph Schifano, Master Sergeant Sherri Tull, and Chief Michael Szczerba arising from events surrounding a June 5, 2010 traffic accident. Ms. McCaffrey makes claims of negligence and recklessness.

On June 26, 2013, after briefing and a hearing, the Court granted in part and denied in part a motion for summary judgment filed by Defendants Sergeant Bluestein, Sergeant Murray, Corporal Schifano, Master Sergeant Tull, Chief Szczerba and the City (the "Decision"). Through the Decision, the Court entered judgment in favor of the City, Sergeant Bluestein, Sergeant Murray, Corporal Schifano, Master Sergeant Tull, and Chief Szczerba on all claims asserted against these parties in Counts II, III and IV of the Second Amended Complaint.

On July 3, 2013, Ms. McCaffrey filed a motion for reagrument contending that (1) the defendants did not seek to dismiss, and the Court did not rule upon Ms. McCaffrey's state tort gross negligence and reckless retention and supervision claims; (2) the Court overlooked controlling precedent and misapprehended the facts on the Section 1983 claims against the defendants, as relating to the gross negligent and reckless retention and supervision claims as well as the failure to appropriately discipline officers with alcohol-related misconduct; and (3) that the Court misapprehended the law and facts regarding Ms. McCaffrey's equal protection claim against Sergeant Bluestein, Sergeant Murray, Corporal Schifano, and Master Sergeant Tull. This Court granted reargument on the first point. After reargument, the Court allowed Ms. McCaffrey to go forward against Chief Szczerba and the City on Ms. McCaffrey's state tort gross negligence and reckless retention and supervision claims. This Court also allowed the City and Chief Szczerba the opportunity to move for summary judgment only on Ms. McCaffrey's state tort gross negligence and reckless retention and supervision claims. For clarity purposes, the Court designated this claim as Count IV(b).

Subsequently the City and Chief Szczerba filed Defendants' City of Wilmington and Chief Michael Szczerba's Motion to Dismiss or in the Alternative, for Summary Judgment on Count IV(b) of the Second Amended Complaint ("the Motion"). For the reasons set forth in this opinion, the Motion is GRANTED.

Factual Background

This matter arises from a motor vehicle accident, between Ms. McCaffrey and Officer Spencer, which occurred at around 2:00 a.m. on June 5, 2010, at the intersection of 2nd and Orange Streets in Wilmington, Delaware.

At the time of the accident Officer Spencer had been a member of the Wilmington Police Department ("WPD") for approximately two and a half years. Officer Spencer submitted his application for employment with the WPD on May 22, 2007.[2] In the application he disclosed that on July 10, 2004, he had a motor vehicle violation for disregarding a red light, and that on March 9, 2007, he committed a motor vehicle violation for speeding.[3] While certain minimum qualifications are required to join the WPD, no rules or policies require the hiring of a specific officer.[4] Nor do policies or regulations dictate when new officers are hired, or how many are hired.[5] The WPD has discretion with respect to this function.[6] Chief Szczerba approved all new hires.

Officer Spencer began his employment with the WPD in January 2008 as a "Probationary Patrol Officer." Like all new officers he had to complete an eighteen-month probationary period to demonstrate his "fitness for continued employment" before he was officially hired as a Patrol Officer.[7] During this probationary period Officer Spencer was reprimanded and punished for two alcohol-related incidents. On September 13, 2008, Officer Spencer did not show up for work, and he later testified that he did not go to work because he had been out late, drinking the night before.[8] Around November 2008, Officer Spencer admitted to drinking and driving with his gun.[9] Despite these infractions, the WPD determined that Officer Spencer successfully completed his probationary period in June 2009.

Subsequent to the completion of the probationary period, on April 4, 2010, Officer Spencer was disciplined for failing to contact his direct supervisor after being involved in a motor vehicle accident after drinking alcohol.[10]

Two months after that incident, at around 2:00 a.m. on June 5, 2010, at the intersection of 2nd and Orange Streets in Wilmington, Delaware, Officer Spencer drove 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 told Ms. McCaffrey he had been drinking.

At the scene of the accident, 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. 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 agreed 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 next to 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. Ms. McCaffrey rose and returned to the bathroom for five to seven minutes. When she exited the bathroom, ...


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