ROBIN P. THOMPSON, as Guardian Ad Litem for REED C. THOMPSON, a minor, Plaintiff,
CAPE HENLOPEN SCHOOL DISTRICT and BRIDGETTE PEROTTA, Defendants.
Defendants' Motion for Summary Judgment.
Submitted: February 18, 2019
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
RICHARD R. COOCH, R.J.
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.
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.
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
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
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.
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.Reed balanced himself on
the doorframe for stability. While Reed worked, another
student returned to the classroom from the hallway through
the classroom door. 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.
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. Perotta declined to follow that
suggestion, and instead utilized a wedge doorstop whenever
she wished to keep the door open. The wedge doorstop
apparently worked as intended.
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.Discovery has since
closed, and Plaintiff has not sought to amend the complaint.
Defendants now move for summary judgment.
THE PARTIES' CONTENTIONS
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
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. 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.
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.
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
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." Plaintiff contends that Perotta's
conduct falls within the definition of a ministerial act
because the district required that a certain curriculum be
taught. 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
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. 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