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Bowman v. State

Superior Court of Delaware, Kent

April 5, 2018

JUDY BOWMAN, PLAINTIFF,
v.
STATE OF DELAWARE, DELAWARE DEPARTMENT OF NATURAL RESOURCES ("DNREC") AND ENVIRONMENTAL CONTROL DIVISION OF PARKS AND RECREATION, AND KILLENS POND WATER PARK, DEFENDANT.

          Submitted: February 16, 2018

          Jason D. Warren, Esquire, Devera Scott, Esquire

          ORDER

          NOEL EASON PRIMOS, JUDGE

         Before the Court are Defendants State of Delaware Department of Natural Resources and Environmental Control Division of Parks and Recreation's (hereinafter "DNREC") and Killens Pond Water Park's (hereinafter "Killens Pond, " individually, and "Defendants, " collectively) motion to dismiss, and Plaintiff Judy Bowman's (hereinafter "Ms. Bowman") response. For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED.

         The facts recited are those as alleged in Plaintiffs' complaint.[1] On July 3, 2015, Ms. Bowman was a business invitee at Killens Pond, which is a water park owned and operated by DNREC. Ms. Bowman was in the pool area when she inadvertently stepped off an unmarked pool ledge, causing her to fall and strike her leg on the ground. As a result of the incident, Ms. Bowman suffered bodily injuries. In her complaint, Ms. Bowman alleges that Defendants were negligent in permitting the treacherous condition to exist, failing to implement some kind of safety measure such as a barricade, and failing to mark the area with a safety warning.

         Defendants bring this motion to dismiss, claiming that Defendants are state agencies established by 29 Del. C. § 8001, and protected by sovereign immunity as set forth in Article 1, Section 9, of the Delaware Constitution. Defendants argue that there is no exception to sovereign immunity in this case, because the State has not waived the defense of sovereign immunity through the Insurance Coverage Act. Defendants proffer an affidavit from a State of Delaware Insurance Coverage Officer confirming that the State has not purchased any commercial insurance, and that the State does not have a self-insurance program for cases of this nature. Further, the Defendants claim that they are protected by "good faith" immunity provided by the State Tort Claims Act. Finally, Defendants argue that dismissal is independently warranted due to deficient service of process.

         Ms. Bowman concedes that Defendants are state agencies, and protected by sovereign immunity unless a waiver or exception applies. To that end, Ms. Bowman argues that sovereign immunity has been waived because discovery is inconclusive on whether Defendants had insured against the type of incident that occurred, and also because the State Tort Claims Act is inapplicable, pursuant to 10 Del. C. § 4012, when a governmental entity is negligent "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." Regarding service of process, Ms. Bowman argues that service made upon an administrative assistant at Secretary Shawn Garvin's office is sufficient to constitute adequate service.

         As an initial matter, Defendants have filed a Rule 12(b) motion to dismiss, but have also submitted evidence for the Court's consideration that goes beyond the pleadings. The Court has discretion to exclude this evidence or to convert the motion to a motion for summary judgment.[2] Here, the Court elects to consider the motion under Rule 12(b) and to exclude the affidavit submitted by the State Insurance Coverage Officer.

         On a motion to dismiss, the moving party bears the burden of demonstrating that "there are no material issues of fact and that he is entitled to judgment as a matter of law."[3] Upon this Court's review of a motion to dismiss, "(i) all well-pleaded factual allegations are accepted as true; (ii) even vague allegations are well-pleaded if they give the opposing party notice of the claim; (iii) the Court must draw all reasonable inferences in favor of the non-moving party; and (iv) dismissal is inappropriate unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof."[4]

         This Court's inquiry is two-fold: (1) whether there was a statutory waiver of sovereign immunity; and (2) whether the claim is barred by the State Tort Claims Act.

         Neither the State of Delaware, nor any of its agencies, may be sued without their consent or express statutory waiver by the General Assembly.[5] Pertinent to this case, the General Assembly enacted 18 Del. C. § 6511, which prohibits the State from asserting the defense of sovereign immunity in any matter concerning a "risk or loss covered by the state insurance coverage program, whether same be covered by commercially procured insurance or by self-insurance."

         Here, Defendants argue that they have no insurance, and therefore, that dismissal is warranted. However, at this stage, the existence of coverage remains an open question. As yet, Ms. Bowman has not been afforded a reasonable opportunity for discovery to determine whether any insurance coverage exists. Therefore, dismissal on this basis is inappropriate.[6]

         Nonetheless, in addition to the bar of sovereign immunity, the State and its agencies are protected by the State Tort Claims Act, which prevents a plaintiff from recovering where:

(1) The act or omission complained of arose out of and in connection with the performance of an official duty requiring a determination of policy, the interpretation or enforcement of statutes, rules or regulations, the granting or withholding of publicly created or regulated entitlement or privilege or any other official duty involving the exercise of discretion on the part of the public officer, employee or ...

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