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Horvat v. State, Office of Management and Budget

Superior Court of Delaware

October 30, 2017

SABRA A. HORVAT, Plaintiff

          Submitted: August 30, 2017

         Upon Defendants' Motion for Summary Judgment. Granted.

          William D. Flethcher, Esq., Schmittinger & Rodriguez, P.A., Attorney for Plaintiff.

          Joseph C. Handlon, Esq., Lynn A. Kelly, Esq., Deputy Attorneys General, Carvel State Office Building, Attorneys for Defendants.


          STOKES, J.


         This matter is presently before the Court on the motion of the Defendants, the State of Delaware Office of Management and Budget, et al. ("Defendants" or "the State"), for summary judgment. The Plaintiff, Sabra A. Horvat ("Plaintiff or "Horvat"), opposes the Motion. For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED.

         II. FACTS

         On March 4, 2014, Horvat reported for jury duty at the Kent County Courthouse. She parked in the Kent County Courthouse Parking Lot on Water Street in Dover. This parking lot had been specified in the jury summons as one of the three areas available to the jury pool for parking. On March 3, 2014, the Dover area had experienced freezing rain and heavy snowfall, which accumulated to around seven inches of snow. By the time Plaintiff parked in the parking lot, it had been cleared. However, some icy patches remained. As Plaintiff walked from her vehicle to the Courthouse, she slipped and fell on a patch of ice and snow located at the entrance of the parking lot. Consequently, Plaintiff sustained serious fractures to her lower left extremity. She underwent two separate surgical procedures to repair her injuries, but she is left with a moderate permanent impairment of her injured leg. Plaintiffs medical expenses exceed $84, 902.44.


         The parties agree that the State of Delaware adheres to the following direction: "Personnel shall perform all necessary tasks to ensure that the assigned areas are clear of snow and ice in a timely manner." They also agree that this work is performed by insured vehicles that plow the snow and salt the pavement after the snow has been cleared. When the task is completed, the pavement should be clear of all snow and ice. It is further undisputed that there was an icy patch remaining in the Kent County Courthouse Parking Lot after the clearing duties had been completed, and that this hazard was the cause of Horvat's fall and injuries. However, the parties disagree as to whether Defendants can be held liable for this failure as well as Plaintiffs resulting injuries. The States advances three theories under which it is immune from suit: sovereign immunity, the public duty doctrine, and the State Tort Claims Act.

         A. Sovereign Immunity

         Under the doctrine of sovereign immunity, the State cannot be sued without its consent.[1]According to 18 Del. C. § 6511, "The defense of sovereignty is waived and cannot and will not be asserted as to any risk or loss covered by the state insurance coverage program, whether same be covered by commercially procured insurance or by self-insurance... ."[2] Defendants claim that, because the State of Delaware does not have insurance for this loss, it cannot be held liable for Plaintiffs injuries. Plaintiff claims that the State's automobile insurance policy covers the loss, thereby waiving immunity. The insurance policy in question reads in pertinent part: "We will pay all sums the insured legally must pay as damages because of bodily injury or property damage to which insurance applies, caused by an auto accident and resulting from the ownership, maintenance or use of a covered vehicle."[3] While Defendants do acknowledge there is an insurance policy, they argue that it would only cover losses incurred directly from the use of the insured vehicle, in this case the snow plow. They assert that the plow did not cause the patch of ice in the parking lot, so there is no insurance coverage. In the absence of insurance coverage, the doctrine of sovereign immunity would apply, relieving the State of any liability.

         Conversely, Plaintiff asserts that the use of the snow plow caused the icy patch and her resultant injury. In her Response in Opposition to Defendants' Motion for Summary Judgment she writes, " is the careless and unreasonable use of a snowplow vehicle and a salt spreader vehicle that allowed untreated snow and ice to remain on parking lot surface and that condition caused Plaintiff to slip and fall on March 4, 2014. The State's sovereign immunity defense is waived...."[4] At the crux of this issue is the following question: did the State's use of an insured snowplow to clear the parking lot constitute "use" as contemplated by the insurance policy, bringing it under the coverage of the policy and waiving sovereign immunity?

         B. Public Duty Doctrine

         In order to recover under the theory of negligence, Plaintiff would have to show, among other things, that Defendants owed her a duty of care. According to the public duty doctrine, government actors typically only owe a duty to the public at large, not to an individual person.[5]However, there are exceptions to this rule. For instance, the special relationship exception covers situations where a closer than usual relationship is found between the state actor and the injured individual. Four factors must be met to establish this exception: (1) the assumption of an affirmative duty by the state actor to act on behalf of the injured party; (2) knowledge on the part of the state actor that its action or inaction could lead to harm; (3) some form of direct contact between the state actor and the injured party; and (4) the injured party's justifiable reliance on the affirmative undertaking of the state actor.[6]

         Thus, Defendants argue that when clearing the snow they were under no duty to Plaintiff beyond the duty owed to the public at large. Therefore, Defendants assert that they cannot be held liable for Plaintiffs fall and injuries. Further, Defendants assert that the special relationship exception would not apply in this case. According to the State, because the roads and parking lot were plowed for the benefit of the general public, not the Plaintiff individually, she could not have relied on the undertaking by Defendants. Thus, there was no special relationship between the State and Horvat.

         On the other hand, Plaintiff argues that "All landowners/possessors have a duty of care owed their invitees to maintain their property in a safe condition..., " which includes the duty to remove snow and ice from a parking lot.[7] This duty does "not change simply because the landowner in question is a governmental entity rather than a private person or entity."[8]Additionally, Horvat points out that the Kent County Courthouse Parking Lot was not open to the general public, but only open to those visiting the Courthouse.

         Moreover, Horvat argues that the special relationship exception would apply here. She argues that, because she was compelled to appear at the Kent County Courthouse for jury duty and because the Kent County Courthouse Parking Lot was specifically identified in the summons as an available place to park, the State undertook an affirmative duty to make this area safe. Additionally, she claims the jury summons and juror call-in telephone line constituted direct contact between the State and herself, which allowed her to justifiably rely on Defendants' clearing of the parking lot. The State counters by arguing that the parking lot had not been "designated" for Plaintiffs use. The jury summons listed several available parking areas, including other parking lots and surrounding street parking. According to the State, it was only executing its duty to provide juries for criminal and civil trials.

         C. State Tort Claims Act

         The State Tort Claims Act ("STCA") "immunizes the state, its agencies, and employees from claims of negligence unless Plaintiff can show one of the following: (1) performance of a ministerial duty; (2) gross negligence; or (3) bad faith."[9] According to Defendants, Plaintiff cannot show any of the above circumstances. However, Horvat contends that plowing the parking lot was a ministerial duty; therefore, the STCA does not insulate Defendants from liability. She claims that, "Some Delaware Courts have held conduct is more likely ministerial when there are hard and fast rules as to the course of conduct or where a person performs in a prescribed manner without regard to his own judgment concerning the act to be done."[10] Here, Plaintiff contends that there is no room for the employee(s) clearing the area to exercise discretion, and the method of removal, i.e., State-owned snowplows and salting vehicles, is already specified, so the snow clearing is a ministerial act.

         In response, Defendants cite Minnesota case law holding that a snowplow operator must "assess the existing conditions and rely on [their] judgment to determine the best time and manner for plowing. These decisions involve sufficient discretion to fall within that protection of official immunity."[11] Defendants note that the cited case dealt with street plowing, not parking lot plowing, but they see no consequential distinction. Thus, they believe that snow clearing must be considered discretionary rather than ministerial, and that the STCA would insulate the State from liability.


         The Court may grant summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law."[12] The moving party bears the initial burden of showing no material issues of fact are present.[13] If the moving party properly supports their motion, the burden then shifts to the non-moving party to rebut the contention that no material issues of fact exist.[14] In considering a motion for summary judgment, the Court must review the record in a light most favorable to the non-moving party.[15] The Delaware Supreme Court illustrates the parameters of granting summary judgment as follows:

Under no circumstances, however, will summary judgment be granted when, from the evidence produced, there is a reasonable indication that a material fact is in dispute. Nor will summary judgment be granted if, upon an examination of all the facts, it seems desirable to inquire thoroughly into them in order to clarify the application of the law to the circumstances.[16]

         V. ANALYSIS

         A. Sovereign Immunity

         Here, the central question is whether the State had insurance coverage for the harm caused. This question only can be answered in the affirmative if the injury was caused by the maintenance, ownership, or use of the snowplow in question, as such circumstances would have brought Plaintiffs injury within the scope of the automobile insurance policy. The facts do not support the contention that the use of the snowplow caused Plaintiffs injuries. Therefore, Plaintiff is precluded from bringing her claim.

         The case Zak v. GPM Investments, LLC contains a similar fact pattern, but can be distinguished by a key fact. In Zak, a driver was struck and killed by another driver as she pulled out of a convenience store parking lot.[17] Three tall snow mounds had been piled in the shoulder which obstructed the view of the decedent-driver, causing her to pull out in front of oncoming traffic.[18] A DelDOT snowplow had been used to clear the roads and caused the accumulation of snow in the shoulder.[19] Therefore, decedent's estate sought to sue the State for negligently clearing the snow and obstructing the decedent's view of traffic, which led to her deadly accident.[20] The same insurance coverage issue was addressed; the insurance policy analyzed in Zak contained the same language as the policy in the case at bar.[21]

         The Zak Court found that the "use" of the snowplow could have contributed to the decedent's accident, at least in part. The Court wrote,

Here, when viewing the facts in the light most favorable to the non-moving parties (i.e., the plaintiffs), I find that the accident may have been at least partially caused by the "use" of the DelDOT snowplow. This is so, because the DelDOT vehicle caused the snow to pile into three mounds that were between 30 and 60 inches in height near the exit of the gas station. Arguably, the snow mounds impaired the decedent's line of sight, and thus, potentially contributed to the cause of the accident. Because the DelDOT snowplow "allegedly produce[d] or was the instrument of the harm" and the plaintiffs' injuries resulted from the "use" of that vehicle, I find that the plaintiffs have shown that sovereign immunity has been waived by the State in this case.[22]

         In the instant case, there is no similar showing that the "use" of the snowplow caused Plaintiff to slip and fall. A distinction can be drawn here between the affirmative role that the Zak snowplow played in causing view-obstructing snow mounds and the role that the snowplow here played in failing to completely remove a patch of ice from the parking lot. In Zak, it was the action of the snowplow driver (use of the vehicle) that created the dangerous situation. Whereas here, it was merely the failure of the snowplow driver to fully clear the parking lot, not the usage of the snowplow itself. Therefore, the assertion that the "use" of the snowplow caused Plaintiffs injuries ...

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