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Anthony v. City of Dover

Superior Court of Delaware, Kent

January 29, 2015

GALE ANTHONY and ERNEST G. ANTHONY, Plaintiffs,
v.
CITY OF DOVER, Defendant.

Submitted: December 17, 2014

Upon Defendant's Motion to Dismiss.

Kenneth J. Young, Esquire of Young & Malmberg, P.A., Dover, Delaware; attorney for the Plaintiffs.

Daniel A. Griffith, Esquire of Whiteford Taylor & Preston, LLC, Wilmington, Delaware; attorney for the Defendant.

ORDER

William L. Witham, Jr. Resident Judge

The matter before the Court is the Defendant's Motion to Dismiss the Plaintiff's Complaint pursuant to Delaware Superior Court Rule 12(b)(6). The Defendant holds that the City of Dover is not liable for Plaintiff's damages based on the Municipal Tort Claims Act, 10 Del.C. § 4011(a). For the foregoing reasons, the Defendant's motion is granted.

FACTS AND PROCEDURE

On October 15, 2012, Gale Anthony (hereinafter "Plaintiff") was walking on the sidewalk of State Street in Dover, Delaware, when she tripped and fell because a portion of the sidewalk was allegedly in a state of disrepair. The Plaintiff and her husband, Ernest G. Anthony (hereinafter "Plaintiff-husband", or collectively referred to as "the Plaintiffs") claim injuries of a fractured knee cap, minor abrasions and contusions, as well as loss of consortium and related damages.

The Plaintiffs filed their complaint on October 15, 2014. The Plaintiffs contend that because the sidewalk is owned by the City of Dover (hereinafter "Defendant"), it had the responsibility of maintaining the sidewalks so that they were safe for passers by. The Plaintiff states that because the sidewalk appears to have been in a state of disrepair for an extended period of time, that the Defendant is liable as a direct and proximate result for the Plaintiff's harm. The Defendant also asserts that Plaintiff-husband has suffered a loss of consortium based on his wife's injuries.

On October 29, 2014, the Defendant filed its motion to dismiss pursuant to Delaware Superior Court Rule 12(b)(6) and the Municipal Tort Claims Act, 10 Del.C. § 4011(a) and asserts that the Plaintiffs are barred from recovery based on sovereign immunity. The Plaintiffs did not file a response.

STANDARD OF REVIEW

The Court's standard of review on a motion to dismiss is well-settled. When deciding a motion to dismiss, all factual allegations in the complaint are accepted as true.[1] If the complaint and facts alleged are sufficient to support a claim on which relief may be granted, the motion is not proper and should be denied.[2] That is, a motion to dismiss is decided on "whether a plaintiff may recover under any conceivable set of circumstances susceptible to proof under the complaint."[3]Consequently, dismissal will only be warranted when "under no reasonable interpretation of the facts could the complaint state a claim for which relief might be granted."[4]

DISCUSSION

The Delaware County and Municipal Tort Claims Act, 10 Del. C. § 4011, et.seq. ("the Act"), ...


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