Opinion
C.A. No. N12C-02-131 JRJ
02-06-2013
KELLIE DIMAIO and KELLIE DIMAIO and JOHN DIMAIO, JR., as Parents and Natural Guardians for DD, a minor, Plaintiffs, v. CHRISTIANA SCHOOL DISTRICT Defendant.
ORDER
AND NOW, TO WIT, this 6th day of February, 2013, upon consideration of Defendant's Motion to Dismiss, and Plaintiffs' opposition thereto, IT APPEARS TO THE COURT THAT:
1. On February 9, 2012, Plaintiffs, Kellie DiMaio and Kellie DiMaio together with her husband, John DiMaio, Jr., on behalf of their son, DD, a minor, filed a Complaint alleging: Violation of the Delaware Whistleblower's Protection Act (Count I); Breach of covenant of good faith and fair dealing (Count II); Negligence (Count III); and Gross negligence (Count IV). On May 10, 2012, Defendant, Christiana School District, filed a motion to dismiss pursuant to
Superior Court Civil Rule 12(b)(6). On December 6, 2012, this Court issued an order denying Defendant's motion to dismiss Counts I and II, granting Defendant's motion to dismiss Count III, and deferring consideration of Defendant's motion to dismiss Count IV until after Plaintiffs filed an Amended Complaint. Plaintiffs filed their Amended Complaint on December 13, 2012.
2. Under the Delaware State Tort Claims Act (the "DSTCA"), Plaintiffs must allege the absence of one or more of the following elements in order to overcome sovereign immunity: "(1) the action was discretionary in nature; (2) the action was done in good faith; [or] (3) the action was done without gross or wanton negligence." Count IV alleges gross negligence on the part of Defendant. "Gross negligence is a higher level of negligence representing 'an extreme departure from the ordinary standard of care.'" It is "more than ordinary inadvertence or inattention." In fact, the Delaware Supreme Court has compared gross negligence with criminal negligence as defined in
11 Del. C. § 231(a). Thus, gross negligence exists when a "person fails to perceive a risk . . . of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." The Court finds that the averments in Count IV of Plaintiffs' Amended Complaint are stated with sufficient particularity to plead gross negligence, and therefore, Defendant's Motion to Dismiss Count IV is DENIED.
The minor plaintiff is referred to as "DD" in order to protect his privacy.
Trans. ID 42423670.
Trans. ID 44179290.
Trans. ID 48227063.
Trans. ID 48407773.
Smith v. Christina Sch. Dist., 2011 WL 5924393 at * 3 (Del. Super. Nov. 28, 2011), citing Stevenson v. Brandywine Sch. Dist., et al., 1999 WL 742932, at *2 (Del. Super. July 9, 1999), citing Sprout v. Ellenburg Capital Corp., 1997 WL 716901 (Del. Super. Aug. 16, 1997); 10 Del. C. § 4001.
Browne v. Robb, 583 A.2d 949, 953 (Del. 1990), quoting W. PROSSER, HANDBOOK OF THE LAW OF TORTS 150 (2d ed. 1955).
Jardel Co., Inc. v. Hughes, 523 A.2d 518, 530 (Del. 1987).
Id.
Super. Ct. Civ. R. 9(b).
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IT IS SO ORDERED.
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Jan R. Jurden, Judge
cc: Prothonotary