Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Garvin v. City of Wilmington

Superior Court of Delaware

May 8, 2018

NISHEEA GARVIN, Plaintiff,
v.
CITY OF WILMINGTON, Defendant.

          ORDER

          William C. Carpenter, Jr. Judge

         On this 8th day of May, 2018, upon consideration of City of Wilmington's ("Defendant" or the "City") Motion to Dismiss, and Nisheea Garvin's ("Plaintiff) Response on behalf of her minor daughter Donyhla Garvin-Turner ("Donyhla"), it appears to the Court that:

         1. On or about July 29, 2015, Donyhla was a visitor at William Judy Johnson Memorial Park (the "Park") located in Wilmington, Delaware.

         2. Plaintiff claims while visiting the Park she was injured when she was struck by a large metal portion of the fencing that encompassed the Park (the "Accident").

         3. Plaintiff filed a Complaint on July 13, 2017, alleging that the Accident caused a fracture of Donyhla's left leg with residual disfigurement, which could be permanent. In addition to the physical injuries, Donyhla has suffered emotional injuries from the permanent nature of her injuries.

          4. Plaintiff filed suit against the City of Wilmington, Wilmington Parks Network, Friends of Wilmington Parks, Inc., and The West End Neighborhood House Inc. (jointly "the Defendants"). There appears to be no dispute that the City of Wilmington is the owner and operator of the Park.

         5. Plaintiff alleges all Defendants "by and through their agents, servants, and employees, were negligent, grossly negligent, wanton, and/or intentional in that they:

(a) Failed to adequately inspect the Premises for dangerous conditions existing on the Premises representing a hazard to invitees such as plaintiff; (b) Failed to adequately repair and/or remedy dangerous conditions existing on the Premises representing a hazard to invitees such as plaintiff; (c) Failed to adequately warn invitees such as plaintiff of the existence of dangerous conditions existing on the Premises representing a hazard to invitees such as plaintiff; and (d) Allowed a condition which was hazardous and/or dangerous to invitees such as plaintiff to exist on the Premises; and (e) Were otherwise negligent, grossly negligent, and/or committed acts which were wanton and/or intentional, as will be determined in discovery.[1]

         6. Plaintiff seeks "damages and compensation for medical expenses, future medical expenses, diminution of future income, loss of future wages, loss and diminution of future earning capacity, emotional distress, permanency, pain and suffering, loss of services, loss of companionship, the costs of this action, pre-judgment interest, post judgment interest and any other relief which this Court may deem proper" as well as punitive damages.[2]

         7. In response to Plaintiffs Complaint, Defendant, the City of Wilmington, filed on August 24, 2017, the present motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. On February 28, 2018, the parties stipulated that all claims against Defendants, Friends of Wilmington Parks, Inc. and The West End Neighborhood House, Inc., were dismissed without prejudice.

         8. "A motion to dismiss for failure to state a claim upon which relief can be granted made pursuant to Superior Court Rule 12(b)(6) will not be granted if the plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint."[3] All well-pled allegations in the complaint must be accepted as true, [4] and every reasonable factual inference will be drawn in favor of the plaintiff.[5]

         9. Defendant urges the Court to grant its Motion to Dismiss because the City of Wilmington is immune from tort suits pursuant to the County and Municipal Torts Claims Act ("the Act"). The Act states "[e]xcept 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."[6]There are however three exceptions to immunity under the Act.[7] They are:

(1) In its ownership, maintenance or use of any motor vehicle, special mobile equipment, trailer, aircraft or other machinery or equipment, whether mobile or stationary.
(2) 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.