Submitted: February 16, 2018
D. Warren, Esquire, Devera Scott, Esquire
EASON PRIMOS, JUDGE
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.
facts recited are those as alleged in Plaintiffs'
complaint. 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.
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.
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.
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. Here, the Court elects to
consider the motion under Rule 12(b) and to exclude the
affidavit submitted by the State Insurance Coverage Officer.
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." 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."
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.
the State of Delaware, nor any of its agencies, may be sued
without their consent or express statutory waiver by the
General Assembly. 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
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
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