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Thompson v. Cape Henlopen School District

Superior Court of Delaware

March 20, 2019

ROBIN P. THOMPSON, as Guardian Ad Litem for REED C. THOMPSON, a minor, Plaintiff,

          On Defendants' Motion for Summary Judgment.

          Submitted: February 18, 2019

          Thomas J. Roman, Esquire, and Emily P. Laursen, Esquire, Kimmel, Carter, Roman, Peltz & O'Neill, P.A., Newark, Delaware, Attorneys for Plaintiff.

          Douglas T. Walsh, Esquire, Marshall Dennehey Warner Coleman & Goggin, P.C., Wilmington, Delaware, Attorney for Defendants.


          RICHARD R. COOCH, R.J.


         In this case, Robin P. Thompson, ("Plaintiff') as Guardian Ad Litem for Reed C. Thompson, a minor, alleges that defendants' negligent and grossly negligent actions led to Reed sustaining a severe injury to his right little finger. In defendants' motion for summary judgment, they argue that the record demonstrates that Plaintiff has failed to overcome the immunity from civil suits afforded to Defendants under the Delaware State Tort Claims Act ("DSTCA"), 10 Del. C. § 4001. Specifically, defendants argue that Perotta's actions prior to Reed's accident were discretionary in nature and not grossly negligent. Further, defendants contend that the immediate cause of Plaintiff s injury, a classroom door, was not faulty in any relevant way.

         The Court finds that there are no disputes of material fact which would preclude summary judgment, and the Court concludes defendants are entitled to judgment as a matter of law. Perotta was conducting a discretionary task at the time of Reed's accident, and as such only gross negligence will overcome the DSTCA immunity. The record viewed in a light most favorable to Plaintiff does not indicate gross negligence. Under 10 Del C. § 4001 defendants are immune from liability in this civil suit. Defendants' Motion for Summary Judgment is granted.


         During the 2015-2016 school year, Reed C. Thompson attended the fourth grade at Rehoboth Beach Elementary School. Reed was a student in Perotta's class. On March 9, 2016, Perotta led a hands-on mathematics lesson from the students' mathematics workbook. The school district's curriculum mandated that this lesson be taught, and the fourth grade teachers "met twice a week to go over curriculum in an attempt to make sure they were all teaching the same thing.1 The lesson called for the students to measure the dimensions of specific items around the classroom. One of the items the students were required to measure was a flag. The classroom flag hung overhead near the sole classroom door.

         Perotta provided some instruction to the students, and the lesson commenced. Reed began to measure the flag by the classroom door, which was closed at the time.[2]Reed balanced himself on the doorframe for stability. While Reed worked, another student returned to the classroom from the hallway through the classroom door.[3] The door closed shut on Reed's little finger on his right hand and severed the tip of that finger (the "accident"). Plaintiffs complaint had originally alleged that a gust of wind caused the door to slam shut, but that allegation was abandoned at oral argument, after discovery.

         The door that injured Reed was the only entrance into the classroom. The door had a self-closing mechanism which closed the door automatically. A kickstand attached to the door was intended to stop the door from closing. However, the kickstand did not have enough grip on the floor to prevent the door from shutting. At some point, a custodian at Rehoboth Beach Elementary advised Perotta to "spit" on the floor to provide increased grip for the kickstand.[4] Perotta declined to follow that suggestion, and instead utilized a wedge doorstop whenever she wished to keep the door open.[5] The wedge doorstop apparently worked as intended.[6]

         Plaintiff initiated this civil suit claiming that Reed suffered injury as a result of defendants' negligence and gross negligence. Defendants originally moved to dismiss Plaintiffs complaint, arguing that Plaintiff failed to allege sufficient facts to overcome defendants' DSTCA immunity. At oral argument on the motion to dismiss, Plaintiff's counsel indicated that there was reason to believe other similar incidents involving gusts of wind had occurred with the same classroom door prior to the accident. This Court denied defendants' motion to dismiss, and the Court afforded Plaintiff time to undertake discovery to potentially shed further light on Reed's incident and any potential prior similar incidents. Through the course of discovery, the parties learned that the alleged similar incidents did not occur until after the accident. Reed confirmed this timeline in his deposition testimony.[7]Discovery has since closed, and Plaintiff has not sought to amend the complaint. Defendants now move for summary judgment.


         A. Defendants' Contentions

         Defendants move for summary judgment based on the immunity afforded to public entities under the Delaware State Torts Claims Act. Under the DSTCA, public entities, such as Cape Henlopen School District and its employees, are afforded immunity from liability in a civil suit when the conduct complained of was a discretionary act performed in good faith, without gross negligence.

         Defendants argue that Perotta's conduct was entirely discretionary. Defendants contends that the manner in which teachers supervise their students is discretionary as a matter of law, partly because teachers must use their own judgment on how the supervision should be carried out.[8] Perotta provided instructions for the math lesson, and was present in the classroom to supervise the students throughout the math lesson and when the accident occurred, defendants argue that Plaintiff has not provided any evidence-such as a school policy, protocol, or rule-to suggest the manner in which Perotta chose to supervise was instead ministerial in nature.

         Second, defendants argue that Perotta's conduct does not in any event constitute gross negligence. Defendants contend that Plaintiff has not provided any evidence to suggest that defendants knew or should have known of other incidents with the classroom door prior to the accident. Defendants asserts that Reed Thompson's own deposition testimony disproves any allegations of prior knowledge. Further, defendants contend that the Plaintiff cannot support a claim of gross negligence based on the faulty kickstand because the kickstand was not used at the time of the accident, and it is not relevant to this case.

         B. Plaintiff's Contentions

         Plaintiff advances two arguments to overcome the DSTCA immunity. For both arguments, Plaintiff maintains that there are material issues of fact in dispute which preclude granting summary judgment.

         First, Plaintiff contends that Perotta's conduct was ministerial, not discretionary, in nature. Plaintiff argues that an act is ministerial when a school implements a policy regarding the act "and the school is required to follow that policy."[9] Plaintiff contends that Perotta's conduct falls within the definition of a ministerial act because the district required that a certain curriculum be taught.[10] The curriculum required the workbook lesson and Perotta only gave "some instruction[.]"11 Plaintiff contends that the curriculum is a mandatory school policy, and that Perotta's implementation of this mandatory policy should be considered ministerial.

         Second, Plaintiff argues that even if Perotta's conduct was discretionary, not ministerial, Perotta acted with gross negligence. A finding of gross negligence would eliminate defendants' immunity. Plaintiff claims that the defendants were aware of the "broken classroom door" prior to and at the time of the accident.[12] Plaintiff argues that despite this knowledge Perotta required students to stand near the classroom door to measure the flag that hung nearby. Further, Plaintiff contends that Perotta permitted another student to go to the bathroom at the time of the accident, and turned her back on the classroom door despite knowledge that the student would need to come back through the allegedly faulty door. Plaintiff argues that this conduct constitutes gross negligence.

         IV. ...

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