Opinion
C.A. No. 08C-05-052 JRJ.
Submitted: July 17, 2008.
Decided: August 11, 2008.
Upon Defendant's Motion to Dismiss.
GRANTED.Amended Opinion
This 11th day of August, 2008, upon consideration of the Motion to Dismiss filed by Defendant State of Delaware ("State"), it appears to the Court that:
1. According to the Complaint, on or about May 9, 2006 Plaintiff Marsha Mitchell ("Mitchell") was allegedly injured while in an elevator located in the New Castle County Courthouse in Wilmington, Delaware. Mitchell claims that a hand rail fastened to the side of the elevator fell and struck her in the foot and that she "suffered physical injury to her foot, required medical care, endured pain and suffering and has incurred special damages in the form of medical treatment in the amount of $2,477.00."
2. Mitchell further claims that the State was responsible for maintaining the elevator and that it failed to carry out its duty to properly maintain the structure and warn of any defects.
3. On May 7, 2008, Mitchell filed a complaint against the State seeking compensation for her injuries. She claims that the State is not immune from suit pursuant to 10 Del. C. § 4012(2).
4. The State has filed the instant Motion to Dismiss arguing that the Court lacks subject matter jurisdiction to adjudicate this matter due to sovereign immunity as set forth in the Delaware Constitution, Article 1, § 9. According to the State, the complaint must be dismissed pursuant to Superior Court Civil Rule 12(b)(1) because the State has not waived sovereign immunity under 18 Del. C. § 6511.
5. In Pauley v. Reinhoehl, the Delaware Supreme Court articulated a two-prong test to determine whether sovereign immunity would bar an action against the State. Under this test, a plaintiff must show that "(1) the State has waived the defense of sovereign immunity for the actions mentioned in the complaint; and (2) the State Tort Claims Act does not bar the action."
6. The General Assembly has waived sovereign immunity in certain areas such as 18 Del. C. § 6511. Under this provision, the State is deemed to have waived sovereign immunity where it has obtained insurance to cover the alleged loss.
7. The State has submitted an affidavit of Debra Lawhead, the Insurance Coverage Administrator of the State of Delaware, in order to establish that it has not waived the defense of sovereign immunity. In the affidavit, Lawhead states that ""[t]he State of Delaware has 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 that 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."
8. In light of this affidavit, the Court finds sufficient evidence that the State does not carry any insurance to cover the alleged loss and thus it did not waive sovereign immunity pursuant to 18 Del. C. § 6511. Because the State has not waived immunity, the Court need not address whether State Tort Claims Act bars this action.
9. Furthermore, Mitchell's reliance on the statutory exception § 4012(2) is misplaced. That exception is found in Subchapter II of the Delaware Tort Claims Act which only applies to tort claims filed against counties and municipalities, not against the State.
10. Because there is no applicable exception to sovereign immunity in this case, the Court finds that the action against the State of Delaware is barred by that immunity. Thus, the State's Motion to Dismiss is GRANTED.
Complaint, Docket Item ("D.I.") 1.
The State cites to Article 1, § 7 for the proposition that the doctrine of sovereign immunity prevents the State from being sued without its consent. This cite is incorrect. The proper constitutional provision for that proposition is Article 1, § 9.
Super. Ct. Civ. R. 12(b)(1).
848 A.2d 569 (Del. 2004).
Pauley, 848 A.2d at 573.
Doe v. Cates, 499 A.2d 1175, 1177 (Del. 1985).
Lawhead Aff., D.I. 3.
IT IS SO ORDERED.