Summary
finding the State did not waive sovereign immunity "[b]ased upon the unrebutted affidavit" of the State Insurance Coverage Administrator
Summary of this case from Powell v. Del. Dep't of Corr.Opinion
C.A. No. 99C-12-030.
Submitted: May 12, 2000.
Decided: July 7, 2000.
Upon Consideration of Defendant's Motion to Dismiss GRANTED
George A. Jackson, Pro Se.
Erika Sokoloff, Esq., Wilmington, Delaware. Attorney for the State.
ORDER
Upon consideration of the defendant's motion to dismiss, the plaintiffs response, and the record of the case, it appears that:
1. The plaintiff, George A. Jackson, has filed a complaint pro se alleging that he was injured as a result of negligence on the part of the defendant, State of Delaware, and its employees, when he fell in the maximum security kitchen in the Sussex Correctional Institution. The defendant has moved to dismiss the complaint on the grounds of sovereign immunity. An affidavit of Debra A. Lawhead is attached to the motion. The affidavit states that Ms. Lawhead is the Insurance Coverage Officer for the State of Delaware, and that there is no insurance coverage known to her which is applicable to the facts alleged in the plaintiffs complaint.
2. Where a defendant moves to dismiss a complaint for failure to state a claim upon which relief can be granted and includes an affidavit in its moving papers, the motion must be considered a motion for summary judgment.
Shultz v. Delaware Trust Co., Del. Super., 360 A.2d 576 (1976).
3. Summary judgment is appropriate if, after viewing the record in the light most favorable to the non-moving party, the court finds no genuine issue of material fact. If the movant supports the motion with proper affidavits, the burden shifts to the non-moving party to show, using support taken from the developed record or with opposing affidavits, that a material issue of fact exists. If there is a reasonable indication that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law, summary judgment will not be granted. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
Guy v. Judicial Nominating Comm'n, Del. Super., 659 A.2d 777, 780 (1995); Figgs v. Bellevue Holding Co., Del. Super., 652 A.2d 1084, 1087 (1994).
Moore v. Sizemore, Del. Supr., 405 A.2d 679, 681 (1979); Del. Super. Ct. Civ R. 56(e).
Ebersole v. Lowengrub, Del. Supr., 180 A.2d 467, 470 (1962), rev'd in part and aff'd in part, 208 A.2d 495 (1965).
Wootten v. Kiger, Del. Supr., 226 A.2d 238, 239 (1967); Frelick v. Homeopathic Hosp. Ass'n of Delaware, Del. Super., 150 A.2d 17, 19 (1959).
4. The plaintiff initially alleged that his suit was brought pursuant to Supchapter II of Chapter 40 of Title 10. Supchapter II relates to County and Municipal tort claims. Its terms apply to municipalities, towns, counties, and certain other governmental entities. Its terms do not apply to suits against the State. Such suits are governed by Subchapter I of Chapter 40. Realizing this error on his part, the plaintiff also emphasizes that he alleges that the defendant breached a duty of care which arises from 11 Del. C. § 6504 (1)-(3). These sections set forth general powers and duties of the Department of Correction. A waiver of sovereign immunity, however, "must be a clear and specific act of the General Assembly." The statutory provisions relied upon by the plaintiff cannot reasonably be construed as a waiver of sovereign immunity.
11 Del. C. § 4010 (2).
Turnbull v. Fink, Del. Supr., 668 A.2d 1370, 1377 (1995).
5. The State also waives sovereign immunity where a risk or loss is covered by the State Insurance Coverage Program. Based upon the unrebutted affidavit of Ms. Lawhead, it appears that the State Insurance Coverage Program is not applicable to the loss alleged by the plaintiff and that sovereign immunity is not waived on that basis. It further appears that the plaintiffs suit is, therefore, barred by 10 Del. C. § 4001 of the State Tort Claims Act.
See Teat v. Neal, Del. Super., No. 93C-12-206-WTQ, Quillen, J. (Jan. 9, 1996) (Mem. Op.); Walls v. Department of Corrections, Del. Super., WL 25927, Del Pesco, J. (March 2, 1989) (Mem. Op.), aff'd, Walls v. Dept. of Corrections, Del. Supr., 567 A.2d 424 (1989).
THEREFORE, the plaintiffs' complaint is dismissed with prejudice.
IT IS SO ORDERED.