EZEQUIEL GUTIERREZ, as Next Friend of LAREINA D. GUTIERREZ, a Minor, Plaintiffs,
ADVANCED STUDENT TRANSPORTATION, INC., a Delaware Corporation, APPOQUINIMINK SCHOOL DISTRICT, Defendants.
Submitted: April 28, 2015
Upon Defendant's Motion to Dismiss
Gary S. Nitsche, Esquire and Samuel D. Pratcher, III, Esquire (argued), Weik, Nitsche, Dougherty & Galbraith, Attorneys for Plaintiffs.
Marc S. Casarino, Esquire and Agatha C. Mingos, Esquire (argued), White and Williams LLP, Attorneys for Defendant, Appoquinimink School District.
OPINION AND ORDER
Ferris W. Wharton, Judge
This negligence action arises from an incident that took place on a school bus. Ezequiel Gutierrez, as next friend of Lariena D. Gutierrez, minor plaintiff, ("Plaintiff") alleges that she was assaulted by minor Defendant, Jaylynn Miller ("Minor Defendant"),  on September 17, 2013, on a bus operated by co-Defendant Advanced Student Transportation, Inc. ("Advanced"). The Appoquinimink School District ("Appoquinimink") is also a co-Defendant. Appoquinimink filed a Motion to Dismiss seeking dismissal of Count I of Plaintiff's Complaint which claims gross negligence by Appoquinimink. The Court applies Super. Ct. Civ. R. 12(b)(6) to Appoquinimink's Motion to Dismiss and finds that Plaintiff has not pleaded facts to overcome the sovereign immunity provided to Appoquinimink by the Delaware State Tort Claims Act ("DSTCA"). Therefore, Defendant's Motion to Dismiss is GRANTED and Count I of the Complaint is DISMISSED.
II. FACTUAL AND PROCEDURAL CONTEXT
Plaintiff's Complaint, filed on December 11, 2014, states that on or about September 17, 2013 Plaintiff, a minor, was a passenger on a school bus owned and/or leased by Appoquinimink. The Complaint also states that, on that date, Plaintiff was attacked on the school bus by Minor Defendant and that Plaintiff sustained serious and permanent injuries as a result of the alleged attack. The Complaint provides that Minor Defendant was under the supervision of Appoquinimink at the time of the alleged attack.
The Complaint also states that, prior to the alleged incident, Appoquinimink was
aware that [Minor Defendant] had caused issues on Bus No. 14 with other students. [Minor Defendant's] prior conduct at the Appoquinimink School District and on Bus No. 14 in inappropriately touching students, causing interruptions in class and failing to properly be seated on Bus No. 14 were [sic] known to Defendants Appoquinimink School District…
The Complaint provides that "Defendant Appoquinimink School District knew or should have known that the minor Plaintiff had been the object of threats and/or verbal attacks by the [M]inor [Defendant]" and that Appoquinimink "knew or should have known about the previous incidents of inappropriate conduct of the [M]inor [Defendant] in failing to listen to the bus driver of Bus No. 14." The Complaint states that Appoquinimink "took no steps to prevent this incident from occurring."
Additionally, in Count I of the Complaint, Plaintiff asserts that Appoquinimink failed in its duty to prevent bullying under 14 Del. C. §4112D and that Appoquinimink was grossly, willfully and wantonly negligent "because the employment of [Advanced] constituted a heightened risk [sic] harm to the minor Plaintiff because of the pattern of behavior of the [M]inor [Defendant], which constituted extreme departure from the ordinary standard of care." Specifically, the Complaint provides that
Defendant Appoquinimink School District was grossly, willfully and wantonly negligent and/or negligent in that it:
(a) Failed to properly and reasonably supervise the minor Plaintiff, Lareina D. Gutierrez;
(b) Failed to provide the minor Plaintiff, Lareina D. Gutierrez, with an environment free of dangerous hazards;
(c) Hired incompetent and improperly trained and supervise [sic] staff;
(d) Failed to discharge their [sic] administerial duty to supervise the minor children;
(e) Failed to discharge their [sic] administerial duty in selecting a bus company to transport the minor children;
(f) Knew or should have known of the actions of the [M]inor [Defendant] who refused to listen to the bus driver on prior occasions;
(g) Intentionally, recklessly and with bad faith allowed the minor Plaintiff, Lareina D. Gutierrez, ...