Opinion
Civil Action No. 20298-NC.
Submitted: June 16, 2004.
Decided: September 28, 2004.
Mr. Javier Quereguan, Wilmington, DE.
Jonathan L. Parshall, Esquire, Murphy Spadaro Landon, Wilmington, DE.
Eric L. Episcopo, Esquire, New Castle County Law Department, New Castle, DE.
Laura L. Gerard, Esquire, Department of Justice, Wilmington, DE.
Dear Mr. Quereguan and Counsel:
Pending before the Court are New Castle County's motion to dismiss, Red Clay Consolidated School District's motion to dismiss and the State's motion to dismiss and for summary judgment. This letter constitutes the Court's rulings on these motions. For the reasons stated below, the Court denies New Castle County's motion to dismiss, grants Red Clay School District's motion to dismiss without prejudice to Quereguan's ability to amend his Complaint within 30 days to overcome the basis for dismissal, and grants in part and denies in part the State's motion to dismiss and for summary judgment.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Unless otherwise noted, all facts are as stated in the Complaint or are undisputed as indicated in the briefing or the argument held on June 16, 2004.
Pro se plaintiff, Javier Quereguan ("Quereguan"), is a resident of New Castle County and the owner of property located at 320 Maple Avenue in Wilmington, Delaware. He has brought suit against three defendants for damages to his property, allegedly caused by water seeping through a retaining wall located at the edge of the Absalom Jones Community Center property (the "Absalom Jones Property"). Quereguan also seeks an injunction requiring defendants to repair the wall. At all times relevant to this litigation, defendants have been either owners or tenants of the Absalom Jones Property.
Compl. Prayer for Relief (a).
The first named defendant, New Castle County (the "County"), leased the Absalom Jones Property from the second named defendant, Red Clay Consolidated School District ("Red Clay"). Red Clay owned the Absalom Jones Property when Quereguan first noticed the defect in the wall and filed his Complaint. The final named defendant, the State of Delaware, purchased the Absalom Jones Property from Red Clay on July 7, 2003. New Castle County, Red Clay and the State are referred to collectively as "Defendants."
Red Clay's Answer ¶ 46.
Transcript of the June 16, 2004 argument ("Tr.") at 33-34.
Tr. at 34. When the State purchased and took title to the Absalom Jones Property, the related bond bill stated, "[t]he state [of Delaware] took title to this property with the condition that liabilities that may be associated with drainage problems that occurred prior to the date of the transfer, that result in flooding of properties adjacent to the Absalom Jones School shall not be transferred to either the department of administrative services or the state." Tr. at 35.
Quereguan first filed suit in the Superior Court of the State of Delaware. His Complaint claimed that the water, which continues to seep through the retaining wall into his yard, has caused significant damage to his property. Each Defendant responded to the Complaint with a motion to dismiss. After hearing argument on those motions, Judge Del Pesco dismissed the case subject to Quereguan's right to request that it be transferred to the Court of Chancery, because certain relief he requested was in equity. Quereguan subsequently effectuated the transfer.
See Compl. ¶¶ 24-26, 30-31.
Quereguan v. New Castle County, C.A. No. 03C-01-069, March 24, 2003 Order of Judge Del Pesco.
Pending before this Court are Defendants' respective motions to dismiss under Court of Chancery Rule 12(b)(6) and the State's motion for summary judgment under Rule 56.
II. PROCEDURAL STANDARDS
When considering a motion to dismiss under Rule 12(b)(6), the court must assume the truthfulness of all well-pled allegations in the complaint and view those facts, and all reasonable inferences drawn from them, in a light most favorable to the plaintiff. Dismissal is appropriate under Rule 12(b)(6) only when it appears with reasonable certainty that the plaintiff would not be entitled to relief under any set of facts that can be inferred from the pleadings.
Anglo American Sec. Fund, L.P. v. S.R. Global Int'l Fund, L.P., 829 A.2d 143, 148-49 (Del.Ch. 2003).
See, e.g., Leonard Loventhal Account v. Hilton Hotels Corp., 2000 WL 1528909, at *3 (Del.Ch. Oct. 10, 2000); Solomon v. Pathe Communications Corp., 672 A.2d 35, 38 (Del. 1996).
If matters outside the pleadings are presented to and not excluded by the court on a Rule 12(b)(6) motion, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. All parties shall be given a reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Chancery Court Rule 12(b). See, e.g., Malpiede v. Townson, 780 A.2d 1075, 1090 (Del. 2001).
Id.
Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The moving party has the burden to show the absence of any genuine issue of material fact. When considering a motion for summary judgment, the court must view the facts in a light most favorable to the non-moving party.
Chancery Court Rule 56; Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991).
Mell v. New Castle County, 2003 WL 1919331, at *3 (Del.Ch. Apr. 11, 2003).
Acro Extrusion Corp. v. Cunningham, 810 A.2d 345, 347 (Del. 2002).
III. ANALYSIS
The County and State base their motions on their claimed sovereign immunity, while Red Clay bases its motion on the principle that water from the property of an uphill landowner may drain onto the land of a lower landowner so long as the upper landowner does not increase the amount of natural water drainage.A. The Validity and Effect of Defendants' Sovereign Immunity Defenses
The principle of sovereign immunity endures in Delaware law. The State of Delaware is shielded from liability by the Delaware State Constitution as well as the Tort Claims Act. Other governmental entities are shielded by the County and Municipal Tort Claims Act.
Del. Const. art. I, § 9; 10 Del. C. §§ 4001-4003.
1. County's sovereign immunity defense
The County contends that Quereguan has failed to state a claim upon which relief can be granted, because the County enjoys sovereign immunity under the County and Municipal Tort Claims Act. Section 4011(a) of the Act grants all governmental entities immunity from suit on "tort claims seeking recovery of damages." In passing this Act, the General Assembly reaffirmed the principle of sovereign immunity in Delaware. Exceptions to sovereign immunity do exist, however, and are set out in § 4012 of the Act.Quereguan argues that an exception to the County's sovereign immunity applies in this case. Under § 4012(2), a governmental entity is exposed to liability for its negligent acts or omissions that cause damage:
(2) In the construction, operation or maintenance of any public building or the appurtenances thereto, except to historic sites or buildings, structures, facilities or equipment designed for use primarily by the public in connection with public outdoor recreation.
10 Del. C. § 4012(2) (emphasis added).
10 Del. C. § 4012(2) (emphasis added).
Based on the allegations in the Complaint and his comments at argument, Quereguan appears to contend that the retaining wall at the edge of the Absalom Jones Property is an appurtenance to a public building, and that the County failed to maintain it properly. As such, he claims that the County is liable for damages to his property. The County contends that its actions do not fall under the § 4012(2) exception to sovereign immunity. The case law that the County cites in support of its contention, however, is not dispositive of the situation presented in this case.
The County cites Fiat Motors of North America, Inc. v. Mayor and Council of Wilmington, 498 A.2d 1062 (Del. 1985), Triple C. Railcar Service, Inc. v. City of Wilmington, 1993 WL 302077 (Del.Super. Aug. 25, 1993), and In re Consol. Flood Cases, 1993 WL 393044, at *5 (Del.Super. Aug. 13, 1993). Fiat Motors generally discusses sovereign immunity and the Tort Claims Act, but does not discuss "appurtenances" under § 4012(2). Triple C. addresses whether a tide gate may be categorized as "equipment" under § 4012(1). The holding of In re Consolidated Flood Cases is discussed later in this Opinion.
The facts, viewed in a light most favorable to Quereguan, could support a finding that the County failed to maintain a retaining wall, allowing water to flow onto Quereguan's property and cause damage. For the County to succeed on its motion to dismiss, it would have to demonstrate with reasonable certainty that Quereguan would not be entitled to relief under any set of facts that could be inferred from the Complaint. In the few cases on point, such things as sidewalks and parking lots have been found to be "appurtenances." While not deciding the issue at this stage, the Court recognizes that the parties apparently dispute whether the retaining wall should be classified as an "appurtenance" under § 4012(2). Since Quereguan might succeed in proving that it is such an appurtenance, the relief he seeks could be outside the scope of the County's sovereign immunity.
See, e.g., Buckalew v. Cranston Heights Fire Co., 1987 WL 10272, at *2-3 (Del.Super. Apr. 21, 1987) (finding a parking lot an "appurtenance" under § 4012(2)).
The County further contends that regardless of whether the Court finds § 4012(2) applicable, an overriding provision of § 4011(b) of the Act serves to absolve them of liability for any water damage. As the Supreme Court explained in Middleton v. Wilmington Housing Authority, "[s]ection 4011(b) sets forth a number of exceptions to § 4012, which in turn provides exceptions to § 4011(a)." Therefore, the County correctly asserts that even if the retaining wall were considered an "appurtenance" under § 4012(2), a finding that Quereguan's claim falls within § 4011(b) would bar him from recovering money damages.
Tr. at 15.
1994 WL 35382, at **2 (Del. Feb. 2, 1994). Additionally, in Williams v. Alexander, the court noted that "an action must expressly fall within section 4012, but not within section 4011(b), before a municipality can be liable for a tort claim." 1999 WL 167739, at *2 n. 2 (Del.Super. Feb. 23, 1999).
In In re Consolidated Flood Cases, the court found that a defect or obstruction in a floodplain that had fallen into disrepair because of alleged failure to maintain was analogous to defects spoken of in § 4011(b)(6). In pertinent part, § 4011(b) states:
1993 WL 393044, at *5 (Del.Super. Aug. 13, 1993).
(b) Notwithstanding § 4012 of this title, a governmental entity shall not be liable for any damage claim which results from: . . .
(6) Any defect, lack of repair or lack of sufficient railing in any highway, townway, sidewalk, parking area, causeway, bridge, airport runway or taxiway, including appurtenances necessary for the control of such ways including but not limited to street signs, traffic lights and controls, parking meters and guardrails.
The County argues that subsection (6) applies in the current situation to absolve them of liability.
Whether the holding in In re Consolidated Flood Cases should be controlling on the facts of this case is not entirely clear. In any event, however, the procedural posture of this case differs from In re Consolidated Flood Cases, which involved motions for summary judgment. Here, the County has filed a motion to dismiss and the Court must evaluate it based on the facts alleged in the Complaint. Under those facts and reasonable inferences drawn from them, Quereguan might be able to persuade the Court that the retaining wall does not fall within any of the exceptions to liability for damages specified in § 4011(b). Thus, the Court will deny the County's motion to dismiss any claims against it.
2. State's sovereign immunity defense
Similarly, the State bases its motions on a claim of sovereign immunity. When matters outside the pleadings are presented to and accepted by the court on a Rule 12(b)(6) motion, the motion shall be treated as one for summary judgment under Rule 56. Since an affidavit regarding insurance carried by the State has been presented to and accepted by this Court, the insurance-related aspects of the State's motion will be treated as a motion for summary judgment.
See note 10, supra.
Quereguan did not challenge the affidavit regarding the State's insurance coverage or seek any discovery on that issue.
To the extent it has not consented to being sued, the State is immune under the doctrine of sovereign immunity from liability for damages for any alleged violations. The General Assembly waives sovereign immunity only to the extent it provides the State with coverage under the State Insurance Coverage Program. The facts, even when viewed in the light most favorable to Quereguan, show that the State did not have any insurance applicable to water seeping through the retaining wall while it was a subtenant at the Absalom Jones Property. In addition, in its new role as the owner, the State does not have insurance covering the Absalom Jones Property. Thus, the State has not waived its sovereign immunity in this case by having applicable insurance.
See Del. Const. art. I, § 9; Doe v. Cates, 499 A.2d 1175, 1176 (Del. 1985).
18 Del. C. § 6511. The State Tort Claims Act does not act as a waiver of sovereign immunity. Rather, it serves to limit the State's liability in those instances where it has already waived immunity by some other means. Doe, 499 A.2d at 1181. Because the State did not otherwise waive its sovereign immunity, the Court need not address the exceptions to immunity set forth in the State Tort Claims Act.
Lawhead Aff. ¶¶ 5-9.
Accordingly, the State enjoys sovereign immunity against any liability for money damages resulting from water seeping through the retaining wall at the edge of the Absalom Jones Property. Therefore, the Court will grant the State's motion for summary judgment with regard to Quereguan's claims against it for money damages.
3. Plaintiff's request for injunctive relief
Though the State is afforded sovereign immunity for damages caused to Quereguan's property, that immunity only protects it from liability for "money damages." Therefore, the sovereign immunity afforded to the State in this case does not bar Quereguan from seeking injunctive relief against it.
10 Del. C. § 4011(a); Del. Const. art. I, § 9.
See Artesian Water Co. v. Gov't of New Castle County, 1983 WL 17986, at *9 (Del.Ch. Aug. 4, 1983) (noting that § 4011 is limited by its terms to "immunity from damages and not from injunctive relief.").
Assuming the truth of the matters alleged by Quereguan, water continues to seep through the retaining wall of the Absalom Jones Property onto his property, causing damage. Because the damage is ongoing, Quereguan is entitled to seek injunctive relief, and he has done so. Thus, to the extent sovereign immunity is afforded to any Defendant, it will not support dismissal of Quereguan's claim for injunctive relief.
Compl. ¶ 20.
B. Red Clay's Natural Flow of Water Defense
Defendant Red Clay contends that Quereguan has failed to state a claim under Rule 12(b)(6) because Quereguan never claimed that Red Clay increased the natural flow of water onto his land
Under Delaware law, the standard applicable to a landowner's right to drain surface waters is the "reasonable user" standard. The reasonable user standard requires the court to inquire into the facts of each case to determine whether the effects of the actions taken were reasonable with respect to all interested parties.
Welden Farms, Inc. v. Glassman, 414 A.2d 500, 505 (Del. 1980).
Id. at 502.
At argument, Quereguan alleged that the water was not naturally flowing from an uphill landowner, but rather was originating from the Absalom Jones Property. He further alleged that the increase in water flowing downhill in recent years was due to Defendants' lack of maintenance of a swale that had collapsed. Because no trial date has been set in this case, the Court will permit Quereguan to amend his Complaint to include such allegations. Therefore, the Court will grant Red Clay's motion to dismiss without prejudice to Quereguan's ability to amend his Complaint to include an allegation that actions of one or more of the Defendants altered the natural flow of water onto his land Of course, any such allegation must satisfy the requirements of Court of Chancery Rule 11. That is, by filing such an amended complaint, Quereguan would be certifying that to the best of his knowledge and belief, formed after a reasonable inquiry, any allegations about altering the natural flow of water are supported, or likely to be supported, by the evidence after an opportunity for discovery.
Tr. at 48.
Tr. at 48-49.
IV. CONCLUSION
For the reasons stated above, the Court denies New Castle County's motion to dismiss, grants Red Clay School District's motion to dismiss without prejudice to Quereguan's ability to amend his Complaint within 30 days of this Letter Opinion and Order, grants the State's motion for summary judgment as it relates to Quereguan's claims for damages and denies the remainder of the State's motion.
IT IS SO ORDERED.