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Garvin v. The City of Wilmington

Supreme Court of Delaware

February 5, 2019

NISHEEA GARVIN, INDIVIDUALLY AND IN HER CAPACITY AS NEXT FRIEND FOR DONYHLA GARVIN-TURNER, Defendant Below, Appellant,
v.
THE CITY OF WILMINGTON, Plaintiff Below, Appellee.

          Submitted: January 16, 2019

          Court Below: Superior Court of the State of Delaware C.A. No. N17C-07-104

          Before STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.

          ORDER

          LEO E. STRINE, JR., CHIEF JUSTICE

         This 5th day of February 2019, it appears to the Court that:

         (1) A City of Wilmington (the "City") park fence fell on Donyhla Garvin-Turner ("Garvin"). Garvin was injured and Nisheea Garvin, individually and in her capacity as next friend for her minor daughter, sued the City for damages, alleging negligence.[1] On the City's motion to dismiss, the Superior Court found that the City was entitled to sovereign immunity under 10 Del. C. § 4011.[2] Garvin argued that § 4012(2), an exception to sovereign immunity when a municipal government's "negligent acts or omissions caus[e] . . . bodily injury . . . [i]n the construction, operation or maintenance of any public building or the appurtenances thereto, "[3]applied. But the Superior Court found that the exception to § 4012(2)-when the "buildings, structures, facilities or equipment [are] designed for use primarily by the public in connection with public outdoor recreation"-applied because "the place where [Garvin] was injured is a facility 'designed for use primarily in connection with public outdoor recreation.'"[4] Because the exception to the exception applied, the Superior Court found that the City was entitled to sovereign immunity and granted the City's motion to dismiss.[5]

         (2) We note that the parties and the Court below did not consider this Court's decision in Moore v. Wilmington Housing Authority, [6] in which this Court held that the term building in § 4012(2) had to be given its plain, dictionary meaning, which was "a constructed edifice designed to stand more or less permanently, covering a space of land, usu[ally] covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure."[7] Nothing in Garvin's allegations suggest that anything like that type of building existed in the small public park in which she was injured or that the fence that injured her was an appurtenance to that building. Therefore, under Moore, § 4012(2) is inapplicable.

         (3) But even assuming that a public park is a building for purposes of § 4012(2), the Superior Court was also correct that the exception to § 4012(2) applied. As the Superior Court found, [8] the test of whether the exception to § 4012(2) applies has been consistently focused on whether the building (including under our assumption, the facility, park, or site) was one that is "use[d] primarily in connection with public outdoor recreation."[9] This method of reading the exception to § 4012(2) is itself consistent with the principle that sovereign immunity is interpreted broadly and that exceptions to it should be narrowly construed.[10] Here, Garvin concedes that the park (i.e., the type of building she alleges is relevant) was used for public recreation. That is enough for sovereign immunity to apply. The fact that the fence was not itself a piece of recreational equipment does not entitle her to seek recompense from the City under § 4012(2) as it has been consistently interpreted.[11]

         NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is hereby AFFIRMED.

---------

Notes:

[1] Although Nisheea Garvin, individually and in her capacity as next friend for her minor daughter, Donyhla Garvin-Turner, sued the City, for the ease of exposition, Garvin refers to both Donyhla and Nisheea in this order.

[2] 11 Del. C. ยง 4011(a) provides that "[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 ...


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