Opinion
N20C-12-103 EMD
09-21-2022
COREY R. ROBINSON, individually and as guardian Ad Litem for N.M., Plaintiff, v. CHRISTIANA SCHOOL DISTRICT, et al., Defendants/Third Party Plaintiffs, and L.M., et al., Defendants, and ALL IN ONE TRANSPORTATION, LLC, Third-Party Defendant.
Emily P. Laursen, Esquire, Kimmel, Carter, Roman, Peltz &O'Neill, P.A., Wilmington, Delaware. Attorneys for Plaintiff Corey R. Robinson both individually and as guardian Ad Litem for N.M. Allyson M. Britton, Esquire, Morris James LLP, Wilmington, Delaware. Attorneys for Defendants Christiana School District, Board of Education of the Christiana School District, and Christiana School District Transportation Department. Kenneth M. Doss, Esquire, and Daniella C. Spitelli, Esquire, Casarino Christman Shalk Ransom &Doss, P.A., Wilmington, Delaware. Attorneys for Defendants Melissa Jackson and Joseph Glover. Donald L. Gouge, Jr., Esquire, Wilmington, Delaware. Attorney for Defendants Robin L. Smith and K.E.
Submitted: June 9, 2022
Emily P. Laursen, Esquire, Kimmel, Carter, Roman, Peltz &O'Neill, P.A., Wilmington, Delaware. Attorneys for Plaintiff Corey R. Robinson both individually and as guardian Ad Litem for N.M.
Allyson M. Britton, Esquire, Morris James LLP, Wilmington, Delaware. Attorneys for Defendants Christiana School District, Board of Education of the Christiana School District, and Christiana School District Transportation Department.
Kenneth M. Doss, Esquire, and Daniella C. Spitelli, Esquire, Casarino Christman Shalk Ransom &Doss, P.A., Wilmington, Delaware. Attorneys for Defendants Melissa Jackson and Joseph Glover. Donald L. Gouge, Jr., Esquire, Wilmington, Delaware. Attorney for Defendants Robin L. Smith and K.E.
Eric M. Davis, Judge
I. INTRODUCTION
This is a civil action involving various tort claims. Corey Robinson, individually and as guardian Ad Litem for N.M. ("Minor Plaintiff") commenced this action against Christina School District (the "District"), the Board of Education of the District (the "Board"), the District Transportation Department (the "Department," together with the District and the Board, the "District Defendants"), L.M., J.G., K.E., J.J. (collectively "Minor Defendants"), and their respective parents/guardians Frannie Miller-Blackwell, Kenneth Blackwell, Melissa Jackson, Joseph Glover, Robin L. Smith, and Sharday N. James. Ms. Robinson asserts claims against the various defendants arising from a serious after-school incident.
On December 11, 2018, Minor Plaintiff and Minor Defendants were students at Gauger Cobbs Middle School (the "School") within the District. When the school day ended, Minor Plaintiff boarded her assigned school bus along with other students including Minor Defendants. Minor Plaintiff was lured off the bus when the Minor Defendants stole her phone. Minor Plaintiff was kidnapped, falsely imprisoned, and raped by Minor Defendants (the "Incident").
Ms. Robinson seeks damages resulting from the Incident from Minor Defendants, their legal guardians, and the District Defendants. Ms. Robinson filed an eight-count complaint on December 10, 2020. On February 19, 2021, the District Defendants moved to dismiss the Complaint (the "District Defendants' Motion"). On March 29, 2021, Ms. Jackson and Mr. Glover filed a separate Motion to Dismiss (the "Glover Motion"). On May 13, 2021, Ms. Smith filed a Partial Motion to Dismiss with respect to Counts I, V, VI, and VII (the "Smith Motion").Ms. Robinson opposes all three motions. The Court held a hearing on the Motions on June 9, 2022. At the end of the hearing, the Court took the Motions under advisement.
D.I. No. 1.
District Defendants' Motion to Dismiss Plaintiff's Complaint (hereinafter "District Defendants' Mot."); D.I. No. 29.
Defendants Melissa Jackson and Joseph Glover's Motion to Dismiss in Lieu of an Answer (hereinafter "Glover Mot."); D.I. No. 37.
Defendant Robin L. Smith's Partial Motion to Dismiss Complaint Against Defendant Robin L. Smith (hereinafter "Smith Mot."); D.I. No. 46.
For the reasons stated below, the Court GRANTS: (i) the District Defendants' Motion; (ii) the Glover Motion; and (iii) the Smith Motion. The Court will allow Ms. Robinson leave to file an amended complaint to try and cure the deficiencies.
Unless otherwise indicated, the following are the facts as alleged in the Complaint. For purposes of the Motions, the Court must view all well-pleaded facts alleged in the Complaint as true and in a light most favorable to Ms. Griffy. See, e.g., Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 536 (Del. 2011); Doe v. Cedars Acad., LLC, 2010 WL 5825343, at *3 (Del. Super. Oct. 27, 2010).
A. Parties
Minor Plaintiff was a resident of the State of Delaware throughout the entirety of the allegations alleged. At the time of the Incident, the Minor Plaintiff was 13 years old. Ms. Robinson, is the biological mother and legal guardian of the Minor Plaintiff.
Compl. ¶ 1.
Id.
Id. ¶ 2.
The District "is a political subdivision of the State of Delaware created pursuant to 14 Del. C. § 1001, et seq." The District "included 22 schools, 2 early education centers, numerous other schools and programs, all of which are located in New Castle County, Delaware." The Board is a reorganized school board operating under 14 Del. C. § 1043, and is the governing body of the District.
Id. ¶ 3.
Id.
Id. ¶ 4.
"At all times relevant hereto, the Board was responsible for the management and control of the District and its schools, including [the School], and were responsible for employing teachers, bus drivers, educators, and the like within the district." The Department "is responsible for providing busing to certain students within the district." The District oversees the Department. Ms. Robinson sued the District and the Department. The District Defendants note that "[n]o such entities exist. . ." However, the Board "is the legal entity that has the power to sue and be sued." As such, when referencing claims made against the District, the Board, or the Department, the Court will refer to them collectively as the District Defendants.
Id. ¶ 5.
Id. ¶ 6.
Id.
District Defendants Mot. ¶ 1, n.1.
L.M. was a resident of Delaware at the time of the Incident. L.M. was then 13 years old. Frannie Miller-Blackwell and/or Kenneth Blackwell are L.M.'s parents and/or legal guardians. Ms. Miller-Blackwell and Mr. Blackwell were the owners, renters and/or occupiers of the property located at 71 Auckland Drive, Newark, DE on December 11, 2018.
Compl. ¶ 7.
Id.
Id. ¶ 8.
Id.
K.E. was a resident of Delaware on December 11, 2018. K.E. was 14 years old at the time. Robin Smith is the mother and/or legal guardian of K.E.
Id. ¶ 9.
Id.
Id. ¶ 10.
J.G. was a resident of Delaware on December 11, 2018. J.G. was 12 years old at the time of the Incident. Melissa Jackson and/or Joseph Glover are J.G.'s parents and/or legal guardians.
Id. ¶ 11.
Id.
Id. ¶ 12.
J.J. was a resident of Delaware on December 11, 2018. J.J. was 13 years old at the time of the Incident. Sharday James is the mother and/or legal guardian of J.J.
Id. ¶ 13.
Id.
Id. ¶ 14.
B. The Incident
Minor Plaintiff and Minor Defendants were all students at the School. "At the end of the school day, employees and/or agents of" the District and/or the Board "were responsible for and directed the departure and dismiss[al] of the students."
Id. ¶¶ 15-16.
Id. ¶ 17.
On December 11, 2018, Minor Plaintiff and Minor Defendants boarded the school bus at the School. J.J. was not assigned to ride, and had previously been instructed by personnel of the District and/or the Board not to ride the Minor Plaintiff's school bus. However, no one attempted, on December 11, 2018, to prevent, restrict and/or remove J.J. from boarding and/or riding the school bus.
Id. ¶ 18.
Id. ¶ 19.
Id.
The District and the Board "are responsible for the care, welfare and conduct of students while on the school bus."
Id. ¶ 20.
"Minor Plaintiff was scheduled to get off the bus at the first bus stop located at the corner of Auckland Drive." K.E., J.G., and J.J. were not scheduled to exit the school bus at this address. The bus driver allowed Minor Plaintiff, K.E., J.G., J.J. and L.M. to leave the bus at the Auckland Drive address.
Id. ¶ 21.
Id. Although not specifically alleged in the Complaint, the Court reasonably infers that Defendant L.M. was permitted to ride the bus and was scheduled to disembark at the Auckland Drive address because the alleged incidents took place at L.M.'s home.
Id. ¶¶ 21-22.
Minor Defendants stole Minor Plaintiff's cell phone to bait Minor Plaintiff. Minor Defendants then "picked up and carried Minor Plaintiff into" L.M.'s home on Auckland Drive.Minor Defendants "imprisoned Minor Plaintiff in the home and/or garage ignoring her pleas to leave." Minor Defendants "repeatedly raped and/or sexually assaulted" and "filmed themselves committing lewd acts to Minor Plaintiff without Minor Plaintiff's consent." Minor Defendants allegedly threatened to harm Minor Plaintiff with a gun. Minor Defendants held Minor Plaintiff against her will.
Id. ¶ 22.
Id. ¶ 23. The home on Auckland Drive was rented, owned and/or occupied by L.M., Ms. Miller-Blackwell, and/or Mr. Blackwell. Id.
Id. ¶ 24.
Id. ¶¶ 25-26.
Id. ¶¶ 27, 44.
Id. ¶ 28.
Minor Plaintiff escaped. Minor Plaintiff went home and told her mother, Ms. Robinson, about the Incident. Ms. Robinson then reported the Incident to the police. The State charged Minor Defendants with criminal counts of first-degree rape, first-degree kidnapping, first-degree conspiracy and second-degree unlawful sexual contact."
Id. ¶ 29.
Id.
Id.
Id. ¶ 30.
C. Current Litigation
On December 10, 2020, Ms. Robinson filed the Complaint. The Complaint asserts causes of action for: Count I (Assault and Battery); Count II (Negligence); Count III (Gross Negligence- Defendants L.M., K.E., J.G. and/or J.J. and their respective parents); Count IV (Gross Negligence- District Defendants); Count V (Intentional Infliction of Extreme Emotional Distress); Count VI (Negligent Infliction of Emotional Distress); Count VII (False Imprisonment); and Count VIII (Premise Liability). Ms. Robinson alleges that the conduct of the Minor Defendants caused Minor Plaintiff to become depressed and suicidal. Minor Plaintiff suffered additional injuries from the Incident. Ms. Robinson alleges that she experienced emotional distress, depression, fear and anxiety as a result of the abuse that her minor child endured, and was required to move as a result of the incident. Ms. Robinson seeks damages resulting from the Incident from Minor Defendants, their legal guardians, and the District Defendants.
D.I. No. 1.
Compl. ¶ 73.
See id. ¶¶ 74-83.
Id. ¶¶ 84-86.
On March 5, 2021, District Defendants filed a Third-Party Complaint Against Third-Party Defendant All in One Transportation, LLC. D.I. No. 30. On May 3, 2021, Third-Party Defendant All in One Transportation filed an Answer to the Third-Party Complaint and Crossclaims. D.I. No. 44. District Defendants filed an Answer to the Crossclaim on May 4, 2021. D.I. No. 45. Defendants Melissa Jackson and Joseph Glover filed an Answer to the Crossclaim on May 21, 2021. D.I. No. 47.
On February 19, 2021, District Defendants filed the District Defendants' Motion. On March 18, 2021, Ms. Robinson filed a Response to the District Defendants' Motion ("Opposition to District Defendants' Motion"). On March 19, 2021, Ms. Jackson and Mr. Glover filed a letter to the Court joining in opposition to the District Defendants' Motion. On April 2, 2021, J.G. filed a letter to the Court joining in any opposition to the District Defendants' Motion.
D.I. No. 29.
Plaintiff's Response to District Defendant's Motion to Dismiss (hereinafter "Opp. to District Defendants' Mot."); D.I. No. 34.
D.I. Nos. 35, 36.
D.I. No. 39.
On March 29, 2021, Ms. Jackson and Mr. Glover filed the Glover Motion. On February 18, 2022, Ms. Robinson filed a Response in Opposition to the Glover Motion ("Opposition to the Glover Motion").
D.I. No. 37.
Plaintiff's Response to Defendant Melissa Jackson and Joseph Glover's Motion to Dismiss (hereinafter "Opp. to Glover Mot."); D.I. No. 52.
On May 13, 2021, Ms. Smith filed a Partial Motion to Dismiss with respect to Counts I, V, VI, and VII (the "Smith Motion"). On February 18, 2022, Ms. Robinson filed a Response in Opposition to the Smith Motion ("Opposition to the Smith Motion").
D.I. No. 46.
Plaintiff's Response to Defendant Robin L Smith's Partial Motion to Dismiss Complaint Against Defendant Robin Smith (hereinafter "Opp. to Smith Mot."); D.I. No. 51.
III. PARTIES' CONTENTIONS
A. The District Defendants' Motion
The District Defendants contend that the Complaint fails to state a claim upon which relief can be granted. The District Defendants' Motion makes three arguments for dismissal: (i) the District Defendants contends they are immune from suit pursuant to the Delaware State Tort Claims Act; (ii) Plaintiff failed to meet specificity pleading standards under Rule 9(b); and (iii) the District Defendants have no special relationship with Ms. Robinson giving rise to a duty of care and are not vicariously liable for the false imprisonment, IIED, and NEID claims.
Ms. Robinson opposes dismissal, claiming that the District Defendants' Motion should be denied because the District Defendants are not immune from suit pursuant to the Delaware State Tort Claims Act. Ms. Robinson also argues that the District Defendants are liable for false imprisonment, IIED, and NEID because the conduct giving rise to the assault began while the minors were in the District Defendant's custody and control and would not have occurred but for District Defendant's grossly negligent conduct.
B. The Glover Motion
Ms. Jackson and Mr. Glover also contend that Ms. Robinson fails to state a claim upon which relief can be granted. Ms. Jackson and Mr. Glover argue that Ms. Robison fails to plead with sufficient particularity facts as to how they failed to exercise proper parental power of control. Ms. Jackson and Mr. Glover additionally argue that Ms. Robinson fails to allege facts that indicate a prior mischievous and reckless disposition of J.G.
Ms. Robinson counters and states that J.G.'s actions were undisputedly willful and wanton and that the Court should deny the Glover Motion. Further, Ms. Robinson contends that J.G. had gotten off the bus at the incorrect stop previously and his parents failed to address this behavior, which could reasonably result in mischievous or reckless conduct resulting in injury to another. Finally, Ms. Robinson claims that given the sensitive nature of dealing with minors, Ms. Robinson should be granted an opportunity to explore these issues through discovery.
C. The Smith Motion
Ms. Smith seeks dismissal of Count I (Assault &Battery), Count V (Intentional Infliction of Emotional Distress), Count VI (Negligent Infliction of Emotional Distress), and Count VII (False Imprisonment). Ms. Smith notes that Delaware has not abrogated the common law rule that parents are not liable for the intentional torts of a minor in their care. As such, Ms. Smith contends that Counts I, V, and VII must be dismissed. Additionally, Ms. Smith argues that Count V (IIED) should be dismissed because Mr. Robinson was not present at the time of the assault. Finally, Ms. Smith asserts that Count VI (NEID) should be dismissed because Ms. Robinson was not in the zone of danger during the incident so an element of NEID cannot be met.
Ms. Robinson maintains that Ms. Smith had an obligation to control her child and failed to do so despite that "[s]he knew, or should have known, that K.E. had, on more than one occasion, gotten off at a bus stop other than the one he was assigned to despite policies prohibiting such conduct." Ms. Robinson contends that this failure resulted in the assault and abuse of Minor Plaintiff. Further, Ms. Robinson argues that although she was not in the physical zone of danger during the assault, the filming of the assault satisfies the rationale behind the presence element of IIED. Ms. Robinson also provides that Minor Plaintiff was traumatized following her release after being assaulted and Ms. Robinson witnessed the signs of trauma in its immediate aftermath as Ms. Robinson resided nearby. Ms. Robinson contends that these factors satisfy the zone of danger element of NEID.
Opp. to Smith Mot. ¶ 5.
IV. STANDARD OF REVIEW
A. Failure to State A Claim under Civil Rule 12(b)(6)
Upon a motion to dismiss, the Court (i) accepts all well-pled factual allegations as true, (ii) accepts even vague allegations as well-pled if they give the opposing party notice of the claim, (iii) draws all reasonable inferences in favor of the non-moving party, and (iv) only dismisses a case where the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances. However, the court must "ignore conclusory allegations that lack specific supporting factual allegations."
See Central Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 227 A.3d 531, 536 (Del. 2011); Doe v. Cedars Acad., No. 09C-09-136, 2010 WL 5825353, at *3 (Del. Super. Oct. 27, 2010).
Ramunno v. Crawley, 705 A.2d 1029, 1034 (Del. 1998).
B. Gross Negligence Pled With Particularity under Civil Rule 9(b)
Under Civil Rule 9(b), a party must plead fraud and negligence with particularity. The purpose of [Civil Rule 9(b)] is to apprise the adversary of the acts or omissions by which it is alleged that a duty has been violated. To plead fraud or negligence with the particularity required by Civil Rule 9(b), a party must include the "time, place, contents of the alleged fraud or negligence, as well as the individual accused of committing the fraud" or negligence.
Super. Ct. Civ. R. 9(b).
Mancino v. Webb, 274 A.2d 711, 713 (Del. Super. 1971).
See TrueBlue, Inc. v. Leeds Equity Partners IV, LP, 2015 WL 5968726, at *6 (Del. Super. Sept. 25, 2015) (quoting Universal Cap. Mgmt., Inc. v. Micco World, Inc, 2012 WL 1313598, at *2 (Del. Super. Feb. 1, 2012).
V. DISCUSSION
As addressed at the hearing, the Complaint is not entirely clear which of the eight counts are imputed to each defendant. For instance, the Complaint alleges that Count I (Assault and Battery) was committed by the Minor Defendants and "initiated while Minor Plaintiff was still in the care and custody of" the District Defendants and "Melissa Jackson, Joseph Glover, Frannie Miller-Blackwell, Kenneth Blackwell, Robin Smith and/or Shaday James." However, the District Defendants specifically state that "Plaintiff asserts four tort claims against the District Defendants: (1) gross negligence; (2) intentional infliction of emotional distress (IIED); (3) negligent infliction of emotional distress (NIED); and (4) false imprisonment." Ms. Robinson does not dispute the omission of Assault and Battery in their Opposition. Moreover, while Counts III and IV specify whose liability is imputed, none of the other counts do so. After some discussion, the Court believes that it understands how Ms. Robinson asserts her claims against the defendants.
Compl. ¶¶ 32-36.
District Defendants' Mot. ¶ 1.
See Opp. to District Defendants' Mot.
A. District Defendants' Motion
i. Delaware State Tort Claims Act
The District Defendants contend that they have immunity pursuant to the Delaware State Tort Claims Act (DSTCA). In particular, the District Defendants note that supervision of Minor Plaintiff is discretionary and not ministerial. Ms. Robinson disagrees and argues that the District Defendants are not immune from suit pursuant to DSTCA because the District Defendants actions were ministerial, not discretionary, and because Ms. Robinson has adequately alleged gross negligence under DSTCA subsection (3).
The DSTCA provides in pertinent part:
. . . no claim or cause of action shall arise . . . against the State . . . or agency of the State . . . in any civil suit or proceeding at law or in equity, or before any administrative tribunal, where the following elements are present:
(1) The act or omission complained of arose out of and in connection with the performance of an official duty requiring a determination of policy, the interpretation or enforcement of statutes, rules or regulations, . . . or any other official duty involving the exercise of discretion . . .;
(2) The act or omission complained of was done in good faith and in the belief that the public interest would be best served thereby; and
(3) The act or omission complained of was done without gross or wanton negligence;
. . . in any civil action or proceeding against the State . . . the plaintiff shall have the burden of proving the absence of 1 or more of the elements of immunity as set forth in this section.
In Delaware, public officials are exempt from suit "when performing official duties involving the exercise of discretion and when performed in good faith and without gross or wanton negligence." Pursuant to the DSTCA, the District Defendants would be entitled to immunity from tort claims resulting from their own negligent acts or omissions, unless such immunity is expressly waived by statute or is overcome by Ms. Robinson alleging facts which demonstrate either (i) a ministerial act; (ii) bad faith; or (iii) that the action was done with gross or wanton negligence. The Complaint does not plead any legislative act constituting a waiver of Defendants' immunity.
Smith v. New Castle Cnty. Vocational Tech. Sch. Dist., 574 F.Supp. 813, 821 (D. Del. 1983).
1. Discretionary Act
The District Defendants maintain that the Complaint is conclusory and only alleges that the "District Defendants failed to supervise and/or monitor the students; allowed or permitted the circumstances to exist when [Minor] Defendants had access to sexually assault [M]inor Plaintiff; failed to protect [M]inor Plaintiff from sexual abuse; and allowed defendants K.E., J.G., and J.J. to exit the school bus at the incorrect bus stop." The District Defendants rely upon Sadler-Ievoli v. Sutton Bus &Truck Co., Inc. and argue that the method of supervision of students on a school bus and actions that the District took or could have taken prior to students entering the bus are discretionary act and thus Ms. Robinson's claims are barred by the DSTCA.
District Defendants' Mot. ¶ 5.
2013 WL 3010719, at *2 (Del. Super. June 4, 2013).
District Defendants' Mot. ¶ 5.
Additionally, the District Defendants argue that, as in Gutierrez v. Advanced Student Transportation, Inc., the Complaint pleads conclusions. Moreover, Ms. Robinson's "allegations do not address how the District Defendants allegedly became aware of J.J.'s propensity to commit sexual assault; or knew, or should have known of the [Minor] Defendants' propensity to commit a sexual assault."
2015 WL 4460342, at *6 (Del Super. July 14, 2015).
District Defendants' Mot. ¶¶ 6-7.
Ms. Robinson states that the conduct at issue was ministerial and not discretionary in nature. Ms. Robinson contends that this case is distinguishable from Sadler-Ivoeli which strictly dealt with lack of supervision of behavior while on the bus. Unlike Sadler-Ivoeli, in the instant case, the Complaint alleges lack of supervision while on the bus, allowing students on a bus they were not assigned, and further allowing students to disembark the bus at stops they were not assigned. Further, Ms. Robinson asserts that the District has policies in place governing conduct on the bus including riding busses other than those assigned and leaving the bus at unassigned stops. Ms. Robinson claims that these policies and the consequences for failure to adhere to those policies demonstrates that the conduct at issue is ministerial and not discretionary. Ms. Robinson also argues that unlike Gutierrez, the Complaint is not conclusory and point the Court to paragraphs 18, 19, and 21 which "state with specificity the conduct at issue."
Opp. to District Defendants' Mot. ¶¶ 5-10.
Id. ¶ 7 (citing Sader-Iveoli, 2013 WL 3010719, at *2-3).
Id.
Id. ¶ 8.
Id. ¶ 9.
"A discretionary act goes to the essence of governing." Under Delaware law, "discretionary acts require some determination or implementation which allows a choice of methods." The Court will find a matter to be discretionary when there is no hard and fast rule as to the course of conduct that a party must or must not follow. Ministerial acts are performed in a prescribed manner, without using individual judgment. The Court will look for the existence of rules, policies, or regulations that minimize or remove opportunities for independent action, in determining whether an act is discretionary or ministerial. "The determination of whether a particular act is discretionary or ministerial is a question of law. The duty to supervise student activities is ministerial. However, the manner and particular methods of supervision are discretionary."
Scarborough v. Alexis I. duPont High Sch., 1986 WL 10507, at *2 (Del. Super. Sept. 17, 1986) (citations omitted).
Sadler-Iveoli, 2013 WL 3010719, at *2.
J.L. v. Barnes, 33 A.3d 902, 914 (Del. Super. 2011) (cleaned up).
Sadler-Iveoli, 2013 WL 3010719, at *2 (citing Simmons v. Delaware Tech. & Cmty. Coll., 2012 WL 1980409, at *4 (Del. Super. May 17, 2012)).
Id.
Id. (citations omitted).
While Ms. Robinson maintains that "the school district has policies in place which: (1) governs student's seating assign[ment] and conduct while on the bus, (2) prohibits students from riding buses other than their assigned buses, and (3) prohibits students from leaving the bus except upon arrival at their bus stop" the Complaint does not adequately allege these facts. Ms. Robinson claims that paragraphs 18, 19, and 21 of the Complaint state with specificity the conduct at issue.
See Opp. to District Defendants' Mot. ¶ 8.
Id. ¶ 9.
The applicable legal standard requires the Court to accept as true all non-conclusory and well-pled allegations. Despite Ms. Robinson's arguments, the Court finds that the supervision of students on a school bus, as well as the actions taken or that could have been taken prior to student embarking on the bus were discretionary acts. The allegations in the Complaint do not establish a prima facie case that any act or omission by the District Defendants was ministerial. Therefore, Ms. Robinson has failed to demonstrate that the policies were ministerial and not discretionary, as required to overcome the District Defendants' immunity established by the DSTCA. The Court will therefore GRANT the District Defendants Motion on the issue of discretionary versus ministerial.
2. Good Faith
Good faith is "honesty of purpose and integrity of conduct." The Complaint makes no allegations of lack of good faith, or that the District Defendants knowingly took actions contrary to the best interests of the public. Given that no allegations in the Complaint address the good faith/public interest element of the DSTCA, the Court finds that Ms. Robinson has not alleged facts sufficient to negate this element of the District Defendants' immunity established by the DSTCA. The Court GRANTS the District Defendants Motion on the issue of whether the District Defendants acted in bad faith.
Sadler-Iveoli, 2013 WL 3010719, at *3 (citation omitted).
3. Gross Negligence
The District Defendants assert that Ms. Robinson failed to plead gross negligence with specificity as required under Civil Rule 9(b). The District Defendants contend that the Complaint contains conclusory allegations and fails to allege facts to support allegations that District Defendants' actions constituted "an extreme departure from the ordinary standard of care" or that the conduct was "so unreasonable and dangerous that a person knows or should know that an imminent likelihood of harm can result."
District Defendants' Mot. ¶ 9.
Id. (citing Gutierrez, 2015 WL 4460342, at *7).
Ms. Robinson claims that the Complaint alleges facts that show that the District Defendants were grossly negligent. Ms. Robinson refers to the previously mentioned paragraphs of the Complaint and asserts that the allegations satisfy the specificity required under Civil Rule 9(b). Further, Ms. Robinson notes that given the age of the Minor Plaintiff, "discovery is appropriate to ascertain additional policies and procedures that were violated" and requests that "[i]n the event that the Court finds that the Complaint lacks sufficient specificity, Plaintiff respectfully requests a reasonable period to amend same."
Opp. to District Defendants' Mot. ¶¶ 11-13.
Id. ¶¶ 13-14.
The DSTCA "requires that Plaintiff allege facts, with particularity, which would demonstrate gross or wanton negligence on behalf of the State." "Pursuant to Superior Court Civil Rule 9(b), a plaintiff must state the circumstances constituting gross negligence with particularity. Gross negligence requires a showing of a high level of negligence that constitutes an extreme departure from the ordinary standard of care."
Sadler-Iveoli, 2013 WL 3010719, at *4.
Id.
The Complaint provides that District Defendants acted grossly or wantonly negligent because the District Defendants:
a. failed to implement practices and procedures to prevent injury to Minor Plaintiff;
b. failed to enforce practices and procedures to prevent injury to Minor Plaintiff;
c. failing to implement and/or follow policies regarding students use of school buses;
d. failed to properly train and/or supervise the bus driver, who was an agent and/or employee, regarding proper practices and procedures;
e. failed to prevent Defendant J.J. [from embarking] on the school bus despite being aware of his propensity to board the bus;
f. allowed or permitted the circumstances to exist wherein defendants L.M., K.E., J.G. and/or J.J. had access to sexually assault Minor Plaintiff;
g. failed to supervise and/or monitor the interactions of minors in their care, custody and control;
h. failed to protect Minor Plaintiff from sexual abuse while Minor Plaintiff was in their care, custody and control.
Compl. ¶ 51.
The Court finds that Ms. Robinson's allegations fail to meet the specificity required by Civil Rule 9(b). Ms. Robinson makes conclusory allegations and the Complaint is bereft of facts to support the allegations that the District Defendants' actions constituted "an extreme departure from the ordinary standard or care" or that the District Defendants' conduct was "so unreasonable and dangerous that a person knows or should know that an imminent likelihood of harm can result." "Without such facts, allegations of gross negligence and wanton negligence are not well-pleaded." As such, Ms. Robinson has not pleaded that immunity is overcome by the District Defendants' gross or wanton negligence. As with the ministerial/discretionary act issue, the Court will allow Ms. Robinson to amend the Complaint to meet the deficiencies. Any amendment must be filed within twenty (20) days of the date of this decision.
Gutierrez, 2015 WL 4460342, at *8 (citing Sadler-Iveoli, 2013 WL 3010719, at *4).
Id.
ii. Special Relationship/Duty
The District Defendants argue that there is no imputed liability against District Defendants for the claims of false imprisonment, IIED, and NEID because "[i]n the context of a school district's duty to students, the Delaware Supreme Court has limited the school district's duty to situations requiring assistance where the [student] is in the custody of the defendant."Here, the Minor Plaintiff was not in the custody of the District Defendants when the false imprisonment, IIED, and NEID allegedly occurred.
District Defendants' Mot. ¶ 10 (citing and quoting Gutierrez, 2015 WL 4460342, at *4 (citations and quotations omitted)).
Ms. Robinson concedes that "[i]t is undisputed that the assault occurred off of school property." However, Ms. Robinson claims that "the conduct giving rise to the assault began while in the District Defendant's custody and control and would not have occurred but for District Defendant's grossly negligent conduct."
Opp. to District Defendants' Mot. ¶ 15.
Id.
The Court finds that the District Defendants are not liable for claims of False Imprisonment, IIED, and NEID. Ms. Robinson does not cite any authority that would establish a continuing duty of care after the students exited the bus. Moreover, Ms. Robinson has not provided any case law which would extend the duty even if the District Defendants violated a policy by permitting students to enter an unassigned bus and/or permitted students to exit the bus at an unassigned stop.
The Court in Gutierrez identifies Section 314A of the Restatement (Second) of Torts as explanatory of situations which give rise to special relationships between parties which impose a duty to protect another and then goes on to state that "to survive a motion to dismiss, Plaintiff must allege that [Minor] Plaintiff was in the custody of [the District Defendants] at the time of the alleged incident." Here, Minor Plaintiff left the custody of the District Defendants upon leaving the bus and therefore any duty owed by District Defendants ended upon leaving the bus. For this reason, the Court will GRANT the District Defendants Motion on the claims of false imprisonment, IIED and NEID.
Gutierrez, 2015 WL 4460342, at *4.
B. The Glover Motion
Ms. Jackson and Mr. Glover assert that the Complaint fails to state a claim upon which relief can be granted. Specifically, although it is established at common law that a parent may be liable for the tortious acts of their child, Ms. Jackson and Mr. Glover contend that Ms. Robinson has not met the test to establish liability in this case. Ms. Jackson and Mr. Glover claim that Ms. Robinson "has not pled any facts with regard to Defendants' knowledge of the alleged events involving their minor child which is said to have occurred prior to his arrival home from school on the date in question" and given that no duty "as asserted by Plaintiff exists at common law" dismissal is appropriate. Relying on the case Mancino v. Webb, Ms. Jackson and Mr. Glover ask the Court to dismiss the claims against them as Ms. Robinson fails to plead the facts with sufficient particularity to survive even a relaxed pleading requirement.
Glover Mot. ¶ 5.
274 A.2d 711, 712 (Del. Super. 1971).
Glover Mot. ¶ 6.
Ms. Robinson states that J.G.'s actions were "undisputedly willful and wanton and met with malice aforethought." Additionally, Ms. Robinson argues that the conduct in the instant case is "substantially more egregious than the conduct in Mancino where the Court denied dismissal under a similar motion." Further, Ms. Robinson contends that J.G. had gotten off the bus at the incorrect stop previously and his parents failed to address this behavior, which could reasonably result in mischievous or reckless conduct resulting in injury to another.Finally, Ms. Robinson asks that, given the sensitive nature of dealing with minors, Ms. Robinson should be granted an opportunity to explore this issue in discovery.
Opp. to Glover Mot. ¶ 6.
Id.
Id. ¶ 7.
Id. ¶ 9.
"It is well established at common law that the mere relationship of parent-child imposed no liability on the parent for the torts of his minor child." However, the failure to control a child known to possess dangerous tendencies may lead to parents' liability. The Restatement (Second) of Torts explains:
Rovin v. Connelly, 291 A.2d 291, 292 (Del. Super. 1972) (citing Prosser, LAW OF TORTS, § 117).
A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control.
Mancino, 274 A.2d at 712 (citing Restatement (Second) of Torts § 316).
"[T]he general rule is that a parent may be liable for the consequences of failure to exercise the power of control which he has over his children, where he knows, or in the exercise of due care should have known, that injury to another is a probable consequence."
Id. (citing and quoting 39 Am. Jur. 695, Parent and Child, § 58).
The Court will GRANT the Glover Motion. Although Ms. Robinson argues knowledge in the Opposition, Ms. Robinson does not allege facts in the Complaint that indicate Ms. Jackson and/or Mr. Glover had any knowledge prior to the Incident that J.G. had gotten off the bus at the stop he was not assigned to or had any propensity to act in a manner that when left unaccompanied and unsupervised could reasonably result in "mischievous and reckless" conduct causing injury to another. The Court will allow Ms. Robinson to amend the Complaint to meet the deficiencies. Any amendment must be filed within twenty (20) days of the date of this decision and must assert facts showing knowledge of both a propensity to leave the bus at an unassigned stop and to commit dangerous acts.
Id.
C. The Smith Motion
Ms. Smith seeks to dismiss Count I (Assault &Battery), Count V (Intentional Infliction of Emotional Distress), Count VI (Negligent Infliction of Emotional Distress), and Count VII (False Imprisonment). As to Court I, Ms. Smith makes substantially the same arguments regarding Delaware law and that parents are not liable for the intentional torts of a minor in their care. Ms. Smith contends that Count V should be dismissed because Ms. Smith was not present at the time of the assault and that "a guardian of a minor child cannot be held liable for the intentional or reckless torts committed by a minor child merely due to the guardian-child relationship." On Count VI, Ms. Smith notes that Ms. Robinson was not in the zone of danger where Minor Plaintiff was assaulted so an element of NEID has not been satisfied. Finally, Ms. Smith argues that Count VII should be dismissed because the guardian is not liable for torts committed by a minor child except in certain circumstances and those circumstances are not present here.
Smith Mot. ¶ 13.
Id. ¶ 16.
Ms. Robinson states that Ms. Smith had an obligation to control her child and failed to do so despite that "[s]he knew, or should have known, that K.E. had, on more than one occasion prior, gotten off at a bus stop other than the one he was assigned to despite policies prohibiting such conduct." Ms. Robinson maintains that this failure resulted in the assault and abuse of Minor Plaintiff. In addition, Ms. Robinson argues that although she was not in the physical zone of danger during the assault, the filming of the assault satisfies the rationale behind the presence element of IIED. Ms. Robinson also provides that Minor Plaintiff was traumatized following the release from the home where she was assaulted, and Ms. Robinson witnessed the signs of trauma in its immediate aftermath which continued because of the proximity of her residence to where the assault occurred. Ms. Robinson believes that these factors satisfy the zone of danger element of NEID.
Opp. to Smith Mot. ¶ 5.
As discussed in the section on the Glover Motion, the Complaint does not allege the requisite knowledge to impute liability on Ms. Smith. Accordingly, the Court will GRANT the Smith Motion but will allow Ms. Robinson leave to amend the Complaint. Given that the Complaint is not pled with sufficient particularity to impute liability on parents for the torts of their minor children, the Court will not conduct an in-depth analysis of whether the elements of IIED, NIED, and false imprisonment are satisfied by the Complaint.
VI. CONCLUSION
For the reasons stated above, the Court GRANTS the District Defendants' Motion; GRANTS the Glover Motion; and GRANTS the Smith Motion. Ms. Robinson has leave to amend the Complaint so long as the amendment addresses the deficiencies set out in this decision.
IT IS SO ORDERED