Castro v. New Castle Cnty. Vocational Technical Sch. Dist.

John K. Welch Judge

To: Tabatha L. Castro, Esquire

The Castro Firm

1719 Delaware Avenue

Wilmington, DE 19806

Eileen M. Ford, Esquire

Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.

300 Delaware Avenue, Suite 900

Wilmington, DE 19801 ORDER ON DEFENDANT'S MOTION TO DISMISS

On August 19, 2016, this Court heard Oral Argument on the above-captioned Motion. Counsel presented legal argument and the Court took this matter under advisement. After careful consideration of the record and the parties' legal and factual contentions, the Court finds as follows:

1. On July 21, 2016, Plaintiff filed an Amended Complaint with this Court, alleging inter alia, that Plaintiff Jacob Aguilar ("Aguilar"), a ninth grader at Hodgson Vocational Technical School ("Hodgson" or "Defendant"), was injured when a student "on the other side of [a] door was jumping around . . . and forcefully slammed the door shut causing [Aguilar's] right forefinger to become lodged in the doorway" as he passed through it. Plaintiffs contend that at that time no employees were present "to ensure the safety of the students" and further averred that prior to this incident, the teacher "...dismissed the students and walked back to his office." Plaintiffs allege that Hodgson failed to exercise reasonable care to protect Plaintiff, in that Hodgson's employees "...have an absolute obligation to ensure their students are supervised . . . at all times."

2. Plaintiffs' Amended Complaint alleges one count of gross negligence as evidenced by Defendant's failure as follows: provide Aguilar with a safe place to attend school, or proper supervision and support; and "implement the proper methods and procedures reasonably adequate to perform daily functions in a safe manner." Plaintiffs assert that the lack of supervision "...was an omission of an act committed with gross and wanton negligence," which overcomes any applicable immunities. Plaintiffs also contend that Defendant's "failure to supervise [Aguilar] was a ministerial act and "not [a] discretionary act[ ]." Plaintiff, as defendant points out, "simply changes allegations in the original complaint to "negligent, intentional, wonton, reckless, malicious and aggressive." However, as described below after a consideration of the record the Court finds the facts pled in the Amended Complaint do not, in fact, meet this legal standard of "gross and wanton negligence". As defendant points out at page 12, "...claims of gross negligence cannot be conclusory and must be accompanied by some factual allegations to support them"

3. In considering motions to dismiss filed pursuant to Court of Common Pleas Civil Rule 12(b)(6), the Court must assume that all well-pleaded facts in the complaint are true. The complaint should not be dismissed unless "the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible to proof."

4. The Delaware State Tort Claims Act ("DSTCA") provides "any political subdivision of the state, including school districts and their employees, [with] . . . immunity from liability when a discretionary act is performed in good faith, without gross negligence." The Court finds that a teacher's "overarching duty to supervise children" is a ministerial act, however, the "manner in which a teacher actually supervises is discretionary." To survive a Motion to Dismiss where DSTCA immunity is asserted so that Plaintiff must sufficiently allege either gross negligence or that Defendant's act was ministerial, not ministerial.

5. Based upon the allegations in Plaintiffs' amended complaint, the central issue before the Court is whether the Complaint sufficiently pleads facts alleging gross or wanton negligence, and/or acts which are otherwise ministerial.

6. It is clear to this Court that the well-pled facts in Plaintiffs' Amended Complaint describe merely negligent conduct that cannot fairly be interpreted to rise to the level of gross or wanton negligence. In an attempt to overcome these factual deficiencies, Plaintiffs summarily attempts to classify these facts pled as grossly negligent by adding to the Amended Complaint the necessary legally operative language to state a cause of action. Plaintiff has, however, alleged sufficient operative facts to support a conclusion that the Hodgson employees' alleged failure to supervise Aguilar and other students at the time the injury occurred, were ministerial acts not entitled to DSTCA immunity and protections. Therefore, this matter may proceed with respect to Plaintiffs' claim that Defendant's failure to supervise Aguilar and other students was the cause of Aguilar's injury.

IT IS HEREBY ORDERED this 23^rd day of August, 2016, that Defendant New Castle County Vocational Technical School District's Motion is GRANTED IN PART and DENIED IN PART. To the extent Plaintiffs' claim is dependent upon well-pled factual allegations of grossly negligence conduct it is dismissed without prejudice pursuant to DSTCA. Plaintiff's claim based upon violations of 14 Del. C. §1055 is also dismissed with prejudice pursuant to C.C.P. Civ. R. 12(b)(6). Plaintiffs have not pled facts or set forth standards breached under this statute to set forth a claim of action under 14 Del. C. §1055. However, Plaintiffs' claim of negligence based upon ministerial acts not entitled to DSTCA immunity survives the Motion to Dismiss. This matter will proceed in accordance with the terms of this Order.

/s/_________

John K. Welch

Judge /jb cc: Ms. Tamu White, CCP Chief Civil Case Supervisor