Opinion
C.A. No. 01C-06-063
Decided: December 27, 2001
ORDER
This 27th day of December, 2001, upon consideration of the submissions of the parties, it appears to the Court that:
1. This is a negligence action which plaintiff Simone Harris ("Harris"), as guardian ad litem of her daughter Naysha Thomas, has filed against defendants Delaware Hospital for the Chronically Ill ("Hospital") and Arnold Morris ("Morris") (collectively "Defendants"). Morris is sued in his official capacity as President of the Hospital. Defendants have moved to dismiss the complaint on grounds that sovereign immunity bars the action. Because the Court finds that the action against both the Hospital and Morris is barred by sovereign immunity, Defendants' motion is GRANTED.
2. The material facts, none of which are in dispute, follow. In June 1999, Naysha Thomas, while visiting her grandfather on the grounds of the Hospital, was injured when a wall fell on her. Harris, the natural mother of Naysha Thomas and her guardian ad litem, filed suit alleging that Naysha Thomas sustained "serious injuries, including but not limited to her kidney, spleen and liver, among other body parts. . . ." Harris alleged that these injuries were proximately caused by the negligence of the Hospital, its agents and employees, in that they:
Compl. ¶ 8.
a. failed to use reasonable care to protect the Plaintiffs from hazardous conditions present on the premises;
b. failed to maintain the premises in a safe condition;
c. failed to properly keep the premises and property free from hazardous conditions which were undiscoverable by the plaintiffs;
d. failed to warn of the existing hazard and danger;
e. failed to make reasonable inspections of the premises for possible hazards;
f. failed to remedy a dangerous condition that it knew or should have known existed on the premises at the time of the Plaintiff's injuries; and
g. was otherwise negligent as the discovery process will reveal.
Compl. ¶ 4. (the Court notes the above-quoted language is actually found in the fifth paragraph of the complaint, but that such paragraph is mislabeled as a second "paragraph 4").
Compl. ¶ 4. (the Court notes the above-quoted language is actually found in the fifth paragraph of the complaint, but that such paragraph is mislabeled as a second "paragraph 4").
The complaint also seeks to impute to Morris any of the Hospital's negligence "due to their agency and/or employment relationship" or "pursuant to the doctrine of Respondeat Superieur [sic]." Significantly, the complaint states that "[t]he Defendant, Delaware Hospital for the Chronically Ill, Division of Health and Social Services, located at 100 Sunnyside Road, Smyrna, Delaware is an Agency of the State of Delaware."
Compl. ¶ 6.
Compl. ¶ 7.
Compl. ¶ 2.
3. Defendants filed their motion to dismiss pursuant to Superior Court Civil Rule 12(b)(6) rather than filing an answer. Defendants argue that they are immune from suit because they enjoy sovereign immunity. In support of this claim, defendants attach an affidavit executed by Debra Lawhead, the Insurance Coverage Officer of the State. The affidavit, in pertinent part, provides as follows:
5. The State of Delaware and its agency (Delaware Hospital for the Chronically Ill) thereof, have not purchased any insurance that I am aware of that would be applicable to the circumstances and events alleged in the Complaint against the State of Delaware and its agency (Secretary of the Department of Public Safety) in the above captioned matter.
6. The General Assembly of the State has not appropriated any money for obtaining said insurance, nor has the General Assembly enacted any legislation pertaining to or allowing any possible liability of the State resulting from the facts as alleged in said Complaint.
7. None of the commercial insurance secured for the State during any fiscal year provided for coverage for the type of injury asserted in the Complaint in the above captioned matter.
Defendants argue that the affidavit establishes that the Hospital, alleged to be a state agency, enjoys sovereign immunity because the State has neither waived immunity nor purchased insurance for the type of harm allegedly suffered by Naysha Thomas.
Defendants argue that the affidavit establishes that the Hospital, alleged to be a state agency, enjoys sovereign immunity because the State has neither waived immunity nor purchased insurance for the type of harm allegedly suffered by Naysha Thomas.
Defendants argue that Morris enjoys sovereign immunity as well because he has been sued only in his official capacity and is therefore derivatively entitled to the immunity enjoyed by the Hospital as a state agency.
In her response, Harris argues that her claim is not barred by sovereign immunity because it fits into an exception contained at 10 Del. C. § 4012(2). That statute provides:
A government entity shall be exposed to liability for its negligent acts or omissions causing property damage, bodily injury or death in the following instances:
(2) In the construction, operation or maintenance of any public building or the appurtenances thereto, except as to historic sites or buildings, structures, facilities or equipment designed for use primarily by the public in connection with public outdoor recreation.
Harris argues that the Hospital is a "public building" pursuant to the Delaware Supreme Court's holding in Moore v. Wilmington Hous. Auth., Del. Supr., 619 A.2d 1166, 1175 (1993) ("[A] building which otherwise qualifies as a public building and is open to those members of the public who use it for its intended purpose is a `public building' for purposes of 10 Del. C. § 4012(2)."). Harris also argues that the Hospital is a public building because it is a "public institution" as that term was defined in State Bd. of Trustees of Delaware State Hosp. at Farnhurst v. Boyer, Del. Super., 159 A.2d 793, 795 (1960) ("Delaware State Hospital is a public institution. . .created. . .owned. . .controlled and maintained by the State of Delaware."). Harris implicitly concedes that there has been no purchase of insurance that would be applicable to the circumstances and events alleged in the complaint when she states "[t]here is no argument that insurance was acquired for this type of injury."
Pl.'s Resp. ¶ 10.
In their reply, Defendants argue that 10 Del. C. § 4012(2) does not apply to this case. Defendants argue that the sovereign immunity exception in § 4012 applies only to tort claims filed against counties and municipalities due to the fact that that exception is found in Subchapter II of the Delaware Tort Claims Act, titled "County and Municipality Tort Claims". In support of this argument, defendants point to the definitional section of Subchapter II, which provides:
As used in this subchapter, unless the context otherwise indicates, the following words shall have the following meanings: . . . .
(2) "Governmental entity" means any municipality, town, county, administrative entity or instrumentality created pursuant to Chapter 8 of Title 22 or Title 9, any municipality created by a special act of the General Assembly, any housing authority created pursuant to Chapter 5 of Title 22, any municipal business improvement district authority created pursuant to Chapter 15 of Title 22 and all registered volunteer fire companies and volunteer rescue squads.
Defendants assert that the Hospital is a state agency owned and operated by the State of Delaware, and therefore qualifies for state sovereign immunity. In support of this argument, Defendants point to 31 Del. C. Ch. 28, titled "Delaware Hospital for the Chronically Ill", which provides that the Department of Health and Social Services "shall have full jurisdiction and control over the Hospital and its patients" and "shall maintain the Hospital and provide for the care and support of the inmates with due regard for their comfort and well-being". Defendants also cite a case decided by the United States District Court of Delaware, Lillard v. Delaware State Hosp. for the Chronically Ill, where that court stated, in finding that the Hospital qualified for Eleventh Amendment immunity, "[t]he Delaware Hospital for the Chronically Ill is a state agency".
D.Del., 552 F. Supp. 711 (1982)
Id. at 719;.
Lastly, Defendants distinguish the cases cited by Plaintiff in her response by stating that "[t]his case involves the Delaware State Hospital for the Chronically Ill. . .located in Smyrna, Delaware, [and] not the Delaware State Hospital. . .now called the Delaware Psychiatric Center [and] located in New Castle, Delaware", and "[Moore]. . .discussed the meaning of public building in connection with the liability of the Wilmington Housing Authority, an entity that falls squarely within the definition of `governmental entity'.".
Defs.' Reply ¶ 1.
Defs.' Reply ¶ 4.
4. Summary judgment is granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Because there is no genuine issue as to any material fact and because Defendants are entitled to judgment as a matter of law under sovereign immunity, Defendants' motion is granted.
Super.Ct.Civ.R. 56(c).
Generally, the doctrine of sovereign immunity provides that a state may not be sued without its consent. The only way to limit or waive state immunity is by act of the General Assembly. Waiver of immunity can occur where insurance is put in place under 18 Del. C. Ch. 65, titled "Insurance for the Protection of the State". Thus, sovereign immunity is waived as to any risk or loss covered by the State Insurance Coverage Program. Suing a state official in his or her official capacity "[has] the same effect as suing the State or one of its agencies[,] and immunity cannot be circumvented in this manner." Where sovereign immunity has not been waived, claims against state officials in their official capacities must be dismissed.
Doe v. Cates, Del. Supr., 499 A.2d 1175, 1176 (1985); Del. Const. art. I, § 9.
Doe, 499 A.2d at 1176.
Boyer v. Sullivan, Del. Super., C.A. No. 87C-JA-157, Del Pesco, J. (August 9, 1988), Mem. Op. at 2.
Scott v. Walsh, Del. Super., C.A. No. 95C-06-067, Quillen, J. (August 9, 1996) (Letter Op.) (holding that named defendants, employees of the Delaware Correctional Center, were protected in their official capacities by sovereign immunity.)
At the outset, the Court notes that for sovereign immunity purposes, the Hospital is considered a state agency and is therefore immune from suit unless an exception applies. In reaching this conclusion, the Court looks to the statute enabling the Delaware Department of Health and Social Services to "control" and "maintain" the Hospital, 31 Del. C. Ch. 28, as well as the Lillard case decided in the Federal District Court. Pursuant to 29 Del. C. Ch. 79, the Department of Health and Social Services is established as part of the state government of the State of Delaware. Because it operates under the aegis of the Department of Health and Social Services, the Hospital is a state agency, and as such, will enjoy sovereign immunity unless an exception applies. This was confirmed in the Lillard case when the court stated that the Hospital is a state agency and therefore enjoyed Eleventh Amendment immunity, i.e., could not be sued in Delaware's federal court by citizens of Delaware. Harris conceded the status of the Hospital as a state agency under the direction of the Department of Health and Social Services when she stated as such in her complaint.
The affidavit submitted by Debra Lawhead, which also refers to the Hospital as a state agency, shows that the State of Delaware has not waived sovereign immunity here. Ms. Lawhead stated that there is no insurance coverage applicable to the facts alleged in the plaintiff's complaint. The affidavit also states that the General Assembly has not appropriated any money for obtaining insurance, nor has it enacted any legislation relevant to the present controversy. The Court notes that Harris concedes this in her response, but instead relies on the possibility of an exception to sovereign immunity in seeking an award.
The Court finds the statutory exception claimed by plaintiff inapplicable. As noted above, that exception, 10 Del. C. § 4012(2), is contained in Subchapter II of the Delaware Tort Claims Act and applies only to tort claims filed against counties and municipalities. In light of the Court's analysis above, Subchapter II is inapplicable to the present case, including the exception to sovereign immunity plaintiff claims. This fact is borne out by the fact that the definitional section of the subchapter refers only to entities such as municipalities, towns, and counties. The cases cited by Harris in her response are therefore inapposite.
Harris has sued Morris only in his official capacity. As noted above, where sovereign immunity has not been waived, claims against state officials in their official capacities must be dismissed. Thus, the Court likewise finds the bar of sovereign immunity to defeat Harris's claim against Morris.
The Court notes that the only manner in which Morris could be held liable is if he were to have been sued in his individual capacity pursuant to 10 Del. C. § 4001. Under that statute, a plaintiff must allege acts or omissions were done with gross or wanton negligence. Viewing the facts in a light most favorable to Harris, the Court finds that the complaint states only a claim for negligence, at best. In view of the absence of allegations of gross or wanton negligence, the Court finds that the complaint fails to state a cognizable claim, and therefore Morris enjoys sovereign immunity protection.
5. For the reasons stated above, this Court finds that the action is barred by sovereign immunity against both the Hospital and Morris. Because there is no applicable exception to that immunity and no genuine issue as to any material fact, Defendants are entitled to summary judgment. Thus, the Court hereby GRANTS Defendants' motion.
IT IS SO ORDERED.