Opinion
C.A. No. 10C-07-203 WCC.
Submitted: January 13, 2011.
Decided: April 29, 2011.
Upon Defendant's Motion for Summary Judgment — GRANTED.
Philip T. Edwards, Esquire; Murphy Landon, Wilmington, DE, Attorneys for Plaintiff.
Eugene A. Steger, Jr., Esquire; Eugene Steger Associates, P.C., PA, Attorney Pro Hac Vice for Plaintiff.
Robert F. Phillips, Esquire; Department of Justice, Wilmington, DE, Attorney for Defendants.
OPINION
Theresa R. Kendall, individually and as personal representative of the estate of J. Scott Kendall ("Plaintiff"), filed this wrongful death action against the State of Delaware and the Department of Natural Resources and Environmental Control (collectively, "Defendants" or "State") in connection with Mr. Kendall's death during a kayaking trip on the Brandywine River. Defendants have filed a Motion for Summary Judgment pursuant to Superior Court Civil Rule 56, in which they assert that all of Plaintiff's claims are subject to an absolute bar from suit in this Court under the doctrine of sovereign immunity. For the reasons set forth below, this Court agrees and the Defendants' Motion will be granted.
Factual and Procedural History
On July 22, 2008, Jeffrey Scott Kendall, a resident of Kennett Square, Pennsylvania, embarked on a six-hour kayak outing along the Brandywine River. The tour was organized by Northbrook Canoe Company, located in West Chester, Pennsylvania. Mr. Kendall was accompanied by his wife Theresa Kendall, his brother Steve Kendall, and Scott Langzettell, a friend of the family. Late in the afternoon, as the group was kayaking through Brandywine Creek State Park, a tree located on private property about one-quarter mile upstream from Thompson's Bridge in Wilmington, Delaware collapsed into the river, striking Mr. Kendall. He sustained traumatic wounds to his face, chest, and neck and was pronounced dead at the scene. His companions were behind him at the time of the fall and were not injured.
Mrs. Kendall subsequently filed this wrongful death and personal injury claim against the State of Delaware. The State filed a Motion for Summary Judgment under Superior Court Civil Rule 56(c), asserting that all of the Plaintiff's claims against it are barred under the doctrine of sovereign immunity. Attached to the Defendant's Motion is the affidavit of Debra A. Lawhead, an insurance coverage officer with the State of Delaware. The Plaintiff timely submitted an opposition brief on December 9, 2010. After oral argument, the Court asked the Plaintiff to provide additional authority to support their claim that the State had either consented to suit or waived its sovereign immunity by virtue of the manner in which Brandywine Creek State Park ("BCSP") was operated. The Plaintiff filed an additional submission, and the State has responded. The case is now ripe for decision.
Standard of Review
A party is entitled to summary judgment where there are no genuine issues of material fact. The moving party bears the burden of showing that there are no genuine issues of material fact so that he is entitled to judgment as a matter of law. The Court must view all factual inferences in a light most favorable to the non-moving party. Summary judgment will not be granted if it appears that there is a material fact in dispute or that further inquiry into the facts would be appropriate.
Super. Ct. R. 56(c); Wilmington Trust Co. v. Aetna, 690 A.2d 914, 916 (Del. 1996).
Moore v. Sizemore, 405 A.2d 679 (Del. 1979).
Alabi v. DHL Airways, Inc., 583 A.2d 1358, 1361 (Del. 1990).
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. Super. 1962), rev'd in part on proc. grounds and aff'd in part, 208 A.2d 495 (1965).
Discussion
The sole issue presented by the State in its Motion for Summary Judgment is whether the Plaintiff's claim is barred by sovereign immunity. The State argues that if there is no insurance to cover the Plaintiff's claim, nor any other independent waiver of immunity under the State Tort Claims Act ("the Act"), then summary judgment must be granted in the State's favor. In response, the Plaintiff argues that the State has consented to suit by providing the Department of Natural Resources and Environmental Control ("DNREC") the statutory authority to sue and be sued. The Plaintiff also argued that the State waived sovereign immunity by virtue of the manner in which they operated the Brandywine Creek State Park ("BCSP") and requested the opportunity to conduct discovery with regard to the operation of the park.Article I, section 9 of Delaware's Constitution of 1897 provides that suits may be brought against the State of Delaware "according to such regulations as shall be made by law." The Delaware Supreme Court has interpreted this constitutional provision to mean that the state is immune from suit unless there is a waiver by "a clear and specific act of the General Assembly." Accordingly, Plaintiff must identify some means by which the General Assembly has waived the State's sovereign immunity to survive summary judgment.
Del. Const. art. I, § 9.
Turnbull v. Fink, 668 A.2d 1370, 1376 (Del. 1995). See also Shellhorn v. Hill, 187 A.2d 71, 74-75 (Del. 1962).
Doe v. Cates, 499 A.2d 1175, 1176-77 (Del. 1985).
The State is considered to have presumptively waived its sovereign immunity under 18 Del. C. § 6511 for any risk or loss covered by the State's insurance coverage program. However, if there is no insurance to protect the State against a particular wrongful act, the State retains its sovereign immunity. In this case, the State has submitted an affidavit from Debra Lawhead stating that there is no insurance applicable to the Plaintiff's claim. Thus, the Plaintiff cannot show that the State waived its sovereign immunity by purchasing insurance to cover this type of claim.
18 Del. C. § 6511 provides, in pertinent part:
The defense of sovereign immunity is waived and cannot and will not be asserted as to any risk or loss covered by the state insurance coverage program, whether same be covered by commercially procured insurance or by self-insurance, and every commercially procured insurance contract shall contain a provision to this effect, where appropriate.
Turn bull, 668 A.2d at 137; Pipkin v. Dept. of Highways and Transp., 316 A.2d 236, 239 (Del. Super. 1974).
The Plaintiff nonetheless contends that the State has waived DNREC's sovereign immunity by investing the Department with the "statutory power to sue or be sued." The Plaintiff contends that the General Assembly vested DNREC with the power to sue under 7 Del. C. § 6005(b)(3) and therefore DNREC is also subject to suit in Delaware's courts. The statute cited by Plaintiffs provides for the imposition of administrative penalties by DNREC for the violation of environmental regulations and further provides, "[in] the event of nonpayment of the administrative penalty after all legal appeals have been exhausted, a civil action may be brought by the Secretary in Superior Court for collection of the administrative penalty, including interest, attorneys' fees and costs, and the validity, amount and appropriateness of such administrative penalty shall not be subject to review."
Sandt v. Delaware Solid Waste Auth., 640 A.2d 1030 (Del. Super. 1994); Masten v. State, 626 A.2d 838 (Del. Super. 1991) (citing Dept. of Community Affairs and Econ. Dev. V. M. Davis Sons, Inc., 412 A.2d 939 (Del. 1980)).
7 Del.C. § 6005(b)(3).
This Court will only find that the General Assembly waived the state's sovereign immunity by statute where the statutory language is clear and unambiguous. Thus, for example, the Delaware Supreme Court held in Department of Community Affairs and Econ. Dev. v. M. Davis Sons, Inc. that the Department of Community Affairs and Economic Development ("DCAED") had waived its sovereign immunity pursuant to 6 Del.C. § 7003(c)(1), which specifically granted the DCAED all powers necessary or convenient to carry out its purposes, including the power "[t]o sue and be sued, implead and be impleaded, complain and defend in all courts." More recently, the Delaware Supreme Court clarified that the statutory power to sue does not imply the power to be sued, declaring, "The grant [. . .] of the authority `to sue' by the General Assembly, in the absence of a concomitant power to be sued, is not sufficiently clear and specific to constitute a waiver of sovereign immunity." Indeed, this Court has previously held that the statutory grant of authority to DNREC to initiate a civil action in Delaware Superior Court for the purpose of enforcing administrative penalties does not constitute a waiver of sovereign immunity. In Sprout v. Ellenburg, this Court concluded that 7 Del. C. § 6005 "merely provides DNREC with the authority to take enforcement actions for violations of 7 Del. C., Chapter 60" and noted that there was "no statutory language which specifically empowers DNREC [. . .] to sue or be sued." Accordingly, this Court finds that the General Assembly did not waive the State's sovereign immunity by providing DNREC with the authority to enforce its administrative penalties even if the enforcement requires the initiation of litigation in the Superior Court.
See Turnbull, 668 A.2d at 1376.
412 A.2d 939 (Del. 1980) (hereinafter " Davis")
Sprout v. Ellenburg, 1997 WL 71690, *5 (Del. Super. Aug. 26, 1997).
Kennerly v. State, 705 A.2d 44, 1997 WL 812627, *2 (Del. Dec. 22, 1997) (TABLE).
Id.
Id.
Finally, the Plaintiff argues that the State's Motion for Summary Judgment should be denied to allow the Plaintiff to conduct additional discovery into the manner in which DNREC operated Brandywine Creek State Park ("BCSP"), where the accident that resulted in Mr. Kendall's death occurred. Plaintiff appears to argue that DNREC may have waived sovereign immunity by operating and maintaining a public park and by charging admission to the park. While the Court is sympathetic to this tragic situation experienced by the Plaintiff, it must also find this argument to be without merit. Delaware law is clear that the State's sovereign immunity can only be waived by the action of the General Assembly. It is not possible for an agency of the state to waive its immunity from suit in Delaware courts through its conduct. The federal case law regarding state sovereign immunity from suit in federal court under the Eleventh Amendment, cited by the Plaintiff in her supplemental memorandum of law submitted after oral argument, is unhelpful here. The Plaintiff brought her state-law claims in Delaware State Court, and the State's defense of sovereign immunity is based on the Delaware Constitution.
The Court certainly appreciates the ramifications of this tragic accident and the emotional interest in holding someone accountable. Unfortunately for the Plaintiff, the law simply does not allow the State's operation of its park that this river happens to run through to be a legal basis for such action. The Plaintiff having failed to meet her burden of showing that the General Assembly acted in some manner sufficient to waive the defense of sovereign immunity, the State's Motion for Summary Judgment is hereby granted.
IT IS SO ORDERED.