Submitted: April 21, 2017
ORDER DEFENDANT'S MOTION TO DISMISS:
Abigail M. LeGrow, Judge.
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
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." She fell face-down on the concrete and
sustained physical injuries to her neck, back, hand, thumb,
leg, knee, right elbow, and right shoulder.
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.
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. 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." The City maintains Ms. Lewandowski's
claim is barred by the Municipal Tort Claims Act (the
"Act").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."
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
The City is entitled to immunity under the Act.
Lewandowski acknowledges the "high burden" she must
meet under the Act in order to sue the City,  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]." 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. Third, Ms. Lewandowski argues her claim
falls under 10 Del C. § 4012(2), which carves
out an exception to the immunity the Act
creates. 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.
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 ...