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Fidance v. City of Wilmington

Superior Court of Delaware

September 29, 2017

MARCIA L. FIDANCE, Plaintiff,
v.
CITY OF WILMINGTON, a municipal corporation of the State of Delaware, et. al, Defendants.

          ORDER

          Calvin L. Scott, Jr., Judge

         Plaintiff filed a tort action against Defendant, City of Wilmington ("the City"), Billy Casper Golf, LLC, and Billy Casper Golf Management, Inc., based on alleged trip and fall at Ed Oliver Gold Club on May 3, 2015, 800 North DuPont Road, Wilmington, Delaware. Plaintiff alleges that on or about May 3, 2015, she was walking and tripped and fell on a sidewalk which was defective and improperly maintained. Plaintiff contends that the Defendants had control and possession of, and a duty to maintain the premises. Defendants filed separate Motions to Dismiss, and the Court addresses each of the Motions in this Order. For the reasons discussed below, the City of Wilmington's Motion to Dismiss is GRANTED, and Defendants Billy Casper's Motion is DENIED.

         A. Defendant, City of Wilmington's Motion to Dismiss. Parties' Contentions

         Defendant, City of Wilmington, filed a Motion to Dismiss on May 15, 2017. The City contends that as a municipality, it is immune to tort claims stemming from trip and falls on sidewalks. Additionally, the City argues that Plaintiff's claims do not fall under any exception to the County and Municipal Tort Claims Act. Plaintiff responds to this argument arguing that the City is not immune from suit because Plaintiff's claims fall within an exception to the County Municipal Tort Claims Act. Plaintiff states that 10 Del. C. § 4012(2) provides that the governmental entity is responsible for its negligent acts or omissions that cause damage in the construction, operation or maintenance of any public building or appurtenances thereto. The City contends that this exception does not apply to Plaintiff's case because 10 Del. C. § 4012(2) also states that the municipality is not liable for negligent acts or omissions in the construction of "buildings, structures, facilities or equipment designed for use primarily by the public in connection with public outdoor recreation." The City's argument is that because the property is a public golf course, and golf is a recreational activity, the section 4012(2) exception does not apply and the City is immune from suit. Plaintiff claims that this argument overlooks that the City's property is not just a public golf course, but a public banquet facility as well, which is used in "a separate and distinct capacity from the golf course." Plaintiff states that she was not on the property because of a golf related activity. Rather, Plaintiff was attending a social function at the banquet hall for a neighborhood reunion. The City argues that as a matter of law, Delaware courts have held that the City is immune from suit due to injuries from sidewalks that are in disrepair, and Section 4011(6) specifically applies to sidewalks.[1] Section 4012(2) provides that the City is liable for 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."[2] Defendant argues that Plaintiff's case fits into the 4012(2) "exception to the exception" as a building or structure designed for use primarily by the public in connection with golf, an outdoor recreation.

         In response, Plaintiff states that although the golf course may be considered public outdoor recreation, Plaintiff was not on the premises to golf. Rather, Plaintiff claims that she fell outside of the banquet hall on the property while attending a social event. Additionally, Plaintiff argues that the "Dover Room" banquet hall is used for other purposes totally unrelated to golf. For example, Plaintiff's Response provided an excerpt from the golf course's website stating that the "Dover Room accommodates 140 guests and the Wilmington Room, perfect for a business meeting or small private event, can seat up to 50 guests. Our professional and experienced staff is prepared to serve any special event from weddings and receptions to business meetings and private parties." Plaintiff claims that the sidewalk where Plaintiff fell is appurtenant to the Dover Room, which is a public building, and thus falls within the exception to the City's immunity. Defendant argues that Plaintiff's Complaint fails to mention a public building or allegations that the sidewalk in question is appurtenant to a public building.

         Standard of Review

         The test for sufficiency of a complaint challenged by a Rule 12(b)(6) motion to dismiss is whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint.[3] In making its determination, the Court must accept all well-pleaded allegations in the complaint as true and draw all reasonable factual inferences in favor of the non-moving party.[4]The complaint must be without merit as a matter of fact or law to be dismissed.[5]

         Therefore, if the plaintiff can recover under any conceivable set of circumstances susceptible of proof under the complaint, the motion to dismiss will not be granted.[6]

         Discussion

         In pertinent, Delaware's County and Municipal Tort Claims Act, 10 Del. C. § 4011, provides:

(a) Except as otherwise expressly provided by statute, all governmental entities and their employees shall be immune from suit on any and all tort claims seeking recovery of damages. That a governmental entity has the power to sue or be sued, whether appearing in its charter or statutory enablement, shall not create or be interpreted as a waiver of the immunity granted under this subchapter.
(b) Notwithstanding § 4012 of this title, a governmental entity shall not be liable for any damage claim which results from:
(6) Any defect, lack of repair or lack of sufficient railing in any highway, townway, sidewalk, parking area, causeway, bridge, airport runway or taxiway, including appurtenances necessary for the control of such ways including but not limited to street signs, traffic lights and controls, parking meters and guardrails.[7]

         Thus, unless provided by statute, the City is immune from suit on any and all tort claims seeking recovery of damages for any defect or lack of repair in sidewalks.[8] 10 Del. C. ยง 4012 lists ...


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