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Lewandowski v. City of Wilmington

Superior Court of Delaware

July 31, 2017

CITY OF WILMINGTON, a municipal corporation under the laws of the State of Delaware, Defendant.

          Submitted: April 21, 2017



          Abigail M. LeGrow, Judge.

         1. The plaintiff fell in a city park when her shoe got caught on what remained of a bench that had been removed from the sidewalk. The city now moves to dismiss the personal injury action the plaintiff brought against it, arguing it is immune from this type of action. The plaintiff asserts that even if immunity applies, she still is entitled to information relating to who removed the bench, specifically whether it was the defendant's employees or independent contractors. The pending motion requires this Court to determine whether the defendant is immune from suit and, if so, whether the defendant nonetheless should be required to provide to the plaintiff the information she seeks. I conclude the defendant is immune from the plaintiffs claim, and the defendant is not required to provide the plaintiff discovery. My reasoning follows.


         2. On or about January 21, 2015, the plaintiff, Jacquie Lewandowski, was walking through Rodney Square toward a bus stop. While walking, "her shoe caught on an underpinning of what appeared to be a bench that had been taken out of the sidewalk."[1] She fell face-down on the concrete and sustained physical injuries to her neck, back, hand, thumb, leg, knee, right elbow, and right shoulder.[2]

         3. Ms. Lewandowski filed against the defendant, the City of Wilmington (the "City"), a tort action, which the City moved to dismiss (the "Motion"). The parties fully briefed the Motion.

         4. Ms. Lewandowski alleges the City (1) left the bench's underpinnings on the sidewalk for "an appreciable amount of time"; (2) did "no work ... to relieve the underpinnings until after [she] fell"; and (3) provided "no warning signs that the underpinnings" remained on the sidewalk.[3] Ms. Lewandowski alleges, in the alternative, that the City hired an independent contractor to remove the bench and the "independent contractor left the underpinnings there for an appreciable amount of time without any type of notice to pedestrians."[4] The City maintains Ms. Lewandowski's claim is barred by the Municipal Tort Claims Act (the "Act").[5]The City seeks dismissal under Superior Court Civil Rule 12(b)(6), arguing Ms. Lewandowski is not entitled to recover because, under Section 4011 of the Act, the City "shall not be liable for any claim which results from: any defect [or] lack of repair ... in any highway, townway, [or] sidewalk."[6]


         5. When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, the Court (1) "accept[s] all well pleaded factual allegations as true, . . . even vague allegations . . . if they give the opposing party notice of the claim"; (2) "draw[s] all reasonable inferences in favor of the non-moving party"; and (3) does not grant the motion if the plaintiff would be "entitled to recover under any reasonably conceivable set of circumstances."[7]

         A. The City is entitled to immunity under the Act.

         6. Ms. Lewandowski acknowledges the "high burden" she must meet under the Act in order to sue the City, [8] but she argues the City is not entitled to immunity for three reasons. First, Ms. Lewandowski contends the facts here do not fall within any of the activities listed in Section 4011, although she recognizes the statute's enumerated list offers examples, which "shall not be interpreted to limit the general immunity provided by [Section 4011]."[9] Second, Ms. Lewandowski argues she has not found caselaw specifically dealing with her scenario - where the City affirmatively acted to create a hazard - and therefore Section 4011 does not apply to her complaint.[10] Third, Ms. Lewandowski argues her claim falls under 10 Del C. § 4012(2), which carves out an exception to the immunity the Act creates.[11] Section 4012(2) provides:

A governmental entity shall be exposed to liability for its negligent acts or omissions causing . . . bodily injury . . . in the . . . construction, operation or maintenance of any public building or the appurtenances thereto, except as to historic sites or buildings, structures, facilities or equipment designed for use primarily by the public in connection with public outdoor recreation.

         According to Ms. Lewandowski, although Rodney Square can be used in connection with public outdoor recreation, it is the City of Wilmington's transportation hub, and therefore it is a "public facility that was not ...

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