IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CARLITA LAWS and )
CHARLES LAWS, II, individually )
and as Administrators of the Estate )
of CHARLES LAWS, III, )
)
Plaintiffs, )
)
v. ) C.A. No. N17C-01-414 ALR
)
VALORIE HANDY, and )
HANDY’S LITTLE DISCIPLES, )
and BOLARIUS HANDY, and )
DELAWARE DEPARTMENT )
OF SERVICES FOR CHILDREN, )
YOUTH, AND THEIR FAMILIES, )
OFFICE OF CHILD CARE )
LICENSING, and )
VIVIAN MURPHY )
)
Defendants. )
Submitted: May 1, 2017
Decided: July 21, 2017
MEMORANDUM OPINION
Upon State Defendants’ Motion to Dismiss
GRANTED IN PART and DENIED IN PART
ROCANELLI, J.
This is a wrongful death case arising from the death of 10-month-old Charles
Laws, III (“Baby Charles”) on January 28, 2015 at Handy’s Little Disciples Home
Daycare Center (“Daycare Center”), operated by Defendant Valorie Handy at a
residence owned by Ms. Handy’s husband, Defendant Bolarius Handy. Baby
Charles was under Ms. Handy’s supervision when Ms. Handy gave Baby Charles a
lethal dose of Benadryl. Baby Charles died as a result of the medication
administered by Ms. Handy.1
This civil action is brought by Baby Charles’ parents and estate (“Plaintiffs”).
In addition to claims of negligence and wrongful death against the Handys, Plaintiffs
assert claims of gross and wanton negligence against the Delaware Department of
Services for Children, Youth and Their Families, Office of Child Care Licensing
(“Licensing Entity”), and Supervisor of Childcare Licensing Vivian Murphy
(“Licensing Supervisor”). Specifically, Plaintiffs allege that the Licensing Entity
and Licensing Supervisor caused Baby Charles’ death by acting with gross and
wanton negligence in licensing, certifying, and supervising Ms. Handy to operate
1
Ms. Handy is committed to the custody of the Department of Correction as a result
of a criminal conviction for Criminally Negligent Homicide (Cr. Id. No.
1507011730) arising from the January 28, 2015 death of Baby Charles. Ms. Handy
was found Guilty by a jury of this lesser-included offense of the charged crime of
Murder by Abuse or Neglect First Degree, and has a good time release date of March
28, 2019.
1
the Daycare Center. (For ease of reference, the Court refers to the Licensing Entity
and Licensing Supervisor collectively as “State Defendants.”)
The State of Delaware has appeared on behalf of State Defendants and has
filed the Motion to Dismiss that is currently before the Court. Plaintiffs oppose State
Defendants’ Motion to Dismiss. To date, neither Ms. Handy2 nor Mr. Handy3 have
filed a response to the Motion to Dismiss. This is the Court’s Memorandum Opinion
on State Defendants’ Motion to Dismiss.
I. FACTUAL BACKGROUND
Baby Charles was born on March 16, 2014 and resided with Plaintiffs in
Millsboro, Delaware. Plaintiffs placed Baby Charles in the Daycare Center during
the workweek. On January 28, 2015, Plaintiffs left Baby Charles at the Daycare
Center under Ms. Handy’s supervision. Later that day, Ms. Handy administered a
large dose of Benadryl to Baby Charles. Ms. Handy did not have legal authority to
administer over-the-counter mediation and did not have the permission of Baby
Charles’ parents. Baby Charles died of diphenhydramine intoxication resulting from
a Benadryl overdose.
2
Ms. Handy has not appeared in this action, although the record reflects that Ms.
Handy has been served with process.
3
Mr. Handy has appeared in this action as a self-represented litigant and requested
an extension to respond to the Complaint in order to consult with an attorney. The
Court granted Mr. Handy’s request for an extension to answer or otherwise respond,
but Mr. Handy has not yet responded to the Complaint and counsel has not appeared
on his behalf.
2
Unbeknownst to Plaintiffs, another infant had been seriously injured under
Ms. Handy’s care prior to Baby Charles’ death. Specifically, two-month-old Jarod
Coursey (“Baby Jarod”) sustained permanent brain damage from shaken-baby
syndrome while under Ms. Handy’s supervision in 2001. Baby Jarod’s injuries
included subdural hematoma, retinal hemorrhaging, and cardiopulmonary arrest.
Baby Jarod currently leads a life of total dependence as a result of the 2001 incident.4
Plaintiffs allege that State Defendants acted with gross and wanton negligence
in licensing Ms. Handy to provide childcare pursuant to Delaware law and by failing
to supervise the Daycare Center following the 2001 incident involving Baby Jarod.
II. APPLICABLE LAW AND LEGAL STANDARDS
State Defendants argue that Plaintiffs’ cause of action against State
Defendants is barred by sovereign immunity and Section 4001 of the State Tort
Claims Act (“Section 4001”).5 In addition, State Defendants assert that Plaintiffs
claims against State Defendants are barred by the public duty doctrine.
4
Ms. Handy was found Not Guilty of Assault by Abuse in connection with the 2001
incident involving Baby Jarod (Cr. Id. No. 0109011510).
5
10 Del. C. § 4001.
3
A. Superior Court Civil Rules 12(b)(1) & 12(b)(6).
State Defendants have moved to dismiss the Complaint pursuant to Superior
Court Civil Rule 12(b)(1) for lack of subject matter jurisdiction. Rule 12(b)(1)
requires the Court to grant a motion to dismiss whenever it appears that the Court
lacks jurisdiction over the claims asserted in the complaint.6 “Notably, ‘[t]he burden
of establishing the Court’s subject matter jurisdiction rests with the party seeking the
Court’s intervention.’”7 In considering a motion under Rule 12(b)(1), “the Court
need not accept Plaintiffs’ factual allegations as true and is free to consider facts not
alleged in the complaint.”8
State Defendants have also moved to dismiss the Complaint pursuant to
Superior Court Civil Rule 12(b)(6) for failure to state a claim upon which relief can
be granted. A motion under Rule 12(b)(6) must be decided solely on the allegations
set forth in the complaint.9 Unlike the standards for a motion to dismiss under Rule
12(b)(1), the Court shall accept all well-pleaded allegations in the Complaint as true
6
See Super. Ct. Civ. R. 12(b)(1); Super. Ct. Civ. R. 12(h)(3).
7
Airbase Carpet Mart., Inc. v. AYA Assocs., Inc., 2015 WL 9302894, at *2 (Del.
Super. Dec. 15, 2015) (alteration in original) (citing Ropp v. King, 2007 WL
2198771, at *2 (Del. Ch. July 25, 2007)). See also Appriva S’holder Litig. Co. v.
EV3, Inc., 937 A.2d 1275, 1284 n.14 (Del. 2007) (“The burden is on the Plaintiffs to
prove jurisdiction exists.”).
8
Appriva, 937 A.2d at 1275 n.14 (quoting Phillips v. Cty. of Bucks, 1999 WL
600541, at *1 (E.D. Pa. Aug. 9, 1999)).
9
Walls v. Williams, 2006 WL 1133563, at *1 (Del. Super. Mar. 28, 2006).
4
and make all reasonable inferences in favor of the non-moving party.10 Factual
allegations, even if vague, are well-pleaded if they provide notice of the claim to the
other party.11 The Court should deny the motion to dismiss if the claimant “may
recover under any reasonably conceivable set of circumstances susceptible of
proof.”12
B. The Doctrine of Sovereign Immunity.
The Licensing Entity is eligible for sovereign immunity, which bars a lawsuit
against the state or federal government in the absence of express consent from the
legislature.13 Delaware courts are not empowered to disregard the doctrine of
sovereign immunity.14 Rather, sovereign immunity must be waived pursuant to a
clear manifestation of intent by the General Assembly. 15 The Delaware Supreme
Court has found that the State waives sovereign immunity “to the extent that either
10
Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998); Spence v. Funk, 396 A.2d
967, 968 (Del. 1978).
11
Spence, 396 A.2d at 968.
12
Id.
13
See U.S. CONST. amend. XI; DEL. CONST. art. 1, § 9; Sherman v. State, 133 A.3d
971, 975 (Del. 2016) (quoting Pauley v. Reinoehl, 848 A.2d 569, 573 (Del. 2004));
Janowski v. Div. of State Police, 981 A.2d 1166, 1169 (Del. 2009) (internal citations
omitted).
14
Pajewski v. Perry, 363 A.2d 429, 433 (Del. 1976) (citing Shellhorn & Hill, Inc. v.
State, 187 A.2d 71, 74 (Del. 1962)).
15
Hartmann v. Sibbold, 2010 WL 3397482, at *1 (Del. Aug. 30, 2010) (internal
citations omitted); Del. Dep’t of Health & Soc. Servs. v. Sheppard, 2004 WL
2850086, at *1 (Del. Dec. 10, 2004) (citing DEL. CONST. art. 1, § 9); Pauley, 848
A.2d at 573 (internal citations omitted).
5
the State insurance program was funded by direct appropriation (self-insurance) or
that the State purchased commercially available insurance to cover the loss.”16
C. Section 4001 of the State Tort Claims Act.
Section 4001 shields State employees,17 such as the Licensing Supervisor,
from civil liability if the State employee’s conduct (i) arose out of and in connection
with the performance of official duties involving the exercise of discretion, (ii) was
performed in good faith, and (iii) was performed without gross or wanton
negligence.18 Plaintiffs must establish the absence of only one of these elements to
defeat qualified immunity under Section 4001.19
D. The Delaware Child Care Act.
The Delaware Child Care Act (“DCCA”)20 authorizes State Defendants to
license, regulate, and supervise any person or organization providing childcare
16
Sherman, 133 A.3d at 975 (quoting Pauley, 848 A.2d at 573).
17
For the purposes of this case, Section 4001 will not be analyzed with respect to
the Licensing Entity because sovereign immunity has not been waived. Therefore,
it is not necessary to reach the question of whether qualified immunity under Section
4001 applies to the Licensing Entity. See infra Part III(A).
18
10 Del. C. § 4001; Christman v. Dep’t of Health & Soc. Servs., 2014 WL 3724215,
at *3 (Del. July 25, 2014) (quoting Jackson v. Minner, 2013 WL 4538321, at *1
(Del. Aug. 23, 2013)). See also Hughes ex rel. Hughes v. Christiana Sch. Dist., 2008
WL 2083150, at *2 (Del. May 19, 2008) (“In other words, Section 4001 provides
immunity to discretionary acts committed in good faith, in the course of the
performance of official duties and without gross or wanton negligence.”).
19
J.L. v. Barnes, 33 A.3d 902, 914 (Del. Super. 2001) (citing 10 Del. C. § 4001);
Minner, 2013 WL 4538321, at *1.
20
31 Del. C. § 341 et seq.
6
services in the State of Delaware.21 Child caretakers and daycare facilities are
required by DCCA to obtain a license from State Defendants prior to offering
childcare services.22 DCCA requires State Defendants to conduct a “thorough
investigation” before issuing a childcare license to ensure that the applicant meets
certain DCCA standards.23 In addition, Delaware law imposes a duty on the
Department of Services for Children, Youth and Their Families to monitor
residential and nonresidential childcare facilities, including daycare centers and
family daycare homes.24
E. The Public Duty Doctrine.
The judicially-created public duty doctrine bars certain claims against State
officials that arise from discretionary conduct.25 The public duty doctrine applies if
the State official owes a duty to the public at large rather than to a specific individual
when the alleged tortuous conduct is discretionary in nature.26 To the extent that
Plaintiffs’ claims arise from the discretionary acts of State Defendants, the claims
are barred by the public duty doctrine unless Plaintiffs can establish (i) an
21
Id. at § 343.
22
Id. at § 344(a).
23
See id. at § 344(b)–(c); 9 Del. Admin. C. § 101-1.0. et seq.
24
29 Del. C. § 9003(7).
25
J.L., 33 A.3d at 916; Higgins v. Walls, 901 A.2d 122, 143 (Del. Super. 2005)
(citing Johnson v. Indian River Sch. Dist., 723 A.2d 1200, 1203 (Del. Super. 1998)).
26
See Jackson v. Minner, 2013 WL 871784, at *3–4 (Del. Super. Mar. 1, 2014),
aff’d, 2013 WL 4538321 (Del. Aug. 23, 2013); Castellani v. Del. State Police, 751
A.2d 934, 938–39 (Del. Super. 1999), aff’d, 1999 WL 1319361 (Del. Dec. 9, 1999).
7
assumption of an affirmative duty to act by State Defendants; (ii) knowledge that
inaction by State Defendants could lead to harm; (iii) some form of direct contact
between State Defendants and the injured party; and (iv) justifiable reliance by
Plaintiffs on an affirmative undertaking by State Defendants.27
III. DISCUSSION
A. The Doctrine of Sovereign Immunity Bars this Lawsuit against the
Licensing Entity.
Plaintiffs have the burden of establishing jurisdiction over the Licensing
Entity28 by overcoming the doctrine of sovereign immunity. In this case, Plaintiffs
assert that sovereign immunity does not apply to the Licensing Entity because
Section 4001 constitutes a “black-letter”29 exception to sovereign immunity for
grossly negligent acts. However, “[g]rossly negligent acts per se and the State Tort
Claims comes (sic) into play only after an express intent to waive sovereign
immunity has been identified.”30 In other words, allegations of gross negligence
under Section 4001 are insufficient to overcome the Licensing Entity’s sovereign
immunity without an independent waiver of immunity.
27
Minner, 2013 WL 871784, at *4 (quoting Castellani, 751 A.2d at 938).
28
Appriva, 937 A.2d at 1275 n.14.
29
Pls.’ Resp. State’s Mot. Dismiss at 7.
30
Sheppard, 2004 WL 2850086, at *1 (emphasis in original). See also Parker v.
Wireman, 2012 WL 1536934, at *1 (Del. Super. Apr. 30, 2012) (citing J.L., 33 A.3d
at 913).
8
Plaintiffs cannot establish that the State has waived sovereign immunity as to
the Licensing Entity for the allegations set forth in Plaintiffs’ Complaint.
Accordingly, Plaintiffs cannot meet the threshold requirement for this cause of
action to proceed against the Licensing Entity. The Court finds that the Motion to
Dismiss must be granted as to the Licensing Entity pursuant to Rule 12(b)(1) and the
doctrine of sovereign immunity.
B. The Licensing Supervisor is Eligible for Qualified Immunity under
Section 4001 and the Protection of the Public Duty Doctrine but the
Lawsuit May Proceed Against the Licensing Supervisor.
Because the Licensing Supervisor is a State official acting in the scope of her
employment for the Licensing Entity, the Licensing Supervisor is eligible for
qualified immunity under Section 4001. Moreover, the Licensing Supervisor is a
public official who is eligible for the protections of the public duty doctrine. Upon
consideration of Section 4001 and the public duty doctrine, as well as the current
record, the Court declines to dismiss Plaintiffs’ claims against the Licensing
Supervisor as a matter of law.
i. Plaintiffs state claims upon which relief may be granted against the
Licensing Supervisor under Section 4001.
Plaintiffs are required to establish one of three possible avenues of relief in
order to defeat the Licensing Supervisor’s qualified immunity under Section 4001:31
31
See supra n. 20.
9
(i) ministerial action; (ii) bad faith; or (iii) gross negligence.32 Accepting all well-
pleaded allegations as true and making all reasonable inferences in favor of
Plaintiffs, there is a reasonably conceivable set of circumstances susceptible to proof
under which Plaintiffs could defeat the Licensing Supervisor’s qualified immunity.
With respect to Section 4001(1), the Court cannot determine whether the
decision to issue a license to Ms. Handy constitutes a discretionary act. An act is
discretionary where “there is no hard and fast rule as to [the] course of conduct that
one must or must not take.”33 In contrast, an act is non-discretionary or ministerial
“if the act of the official involves less in the way of personal decision or judgment
or the matter for which judgment is required has little bearing of importance upon
the validity of the act.”34 Ministerial acts “typically involve conduct directed by
mandatory rules or policies.”35 Here, the record does not indicate whether the
Licensing Entity maintains mandatory policies for issuing a childcare license, and,
if so, whether those policies were observed when the daycare license was issued to
Ms. Handy. Accepting all well-pleaded allegations as true, there is a reasonably
conceivable set of circumstances under which the decision to issue a childcare
license is subject to mandatory rules or policies. Accordingly, the Court cannot
32
See 10 Del. C. § 4001(1)–(3).
33
J.L., 33 A.3d at 914 (alteration in original).
34
Hughes ex rel. Hughes, 2008 WL 2083150, at *3 (quoting Sussex Cty. v. Morris,
610 A.2d 1354, 1358–59 (Del. 1992)).
35
J.L., 33 A.3d at 914 (citing Knoll v. Wright, 1988 WL 71466 (Del. June 29, 1988)).
10
dismiss Plaintiffs’ claims against the Licensing Supervisor as arising from an act of
discretion under Section 4001(1).
With respect to Section 4001(3), the Court cannot determine whether the
Licensing Supervisor was grossly negligent in issuing a daycare license to Ms.
Handy. Gross negligence is a heightened standard of ordinary negligence that is
defined as “an ‘extreme departure from the ordinary standard of care’ that ‘signifies
more than ordinary inadvertence or inattention.’”36 The Delaware Supreme Court
has equated gross negligence to criminal negligence under Delaware’s criminal
code,37 characterizing the applicable standard as the failure “to perceive a risk . . . of
such nature that failure to perceive it constitutes a gross deviation from the standard
of conduct that a reasonable person would observe in the situation.”38 “Ordinarily,
questions of gross negligence and willful or wanton conduct are for the jury and are
not susceptible of summary adjudication.”39
Here, accepting the well-pleaded allegations as true, Plaintiffs have stated a
claim upon which relief may be granted regarding the Licensing Supervisor’s
decision to issue a daycare license to Ms. Handy following the 2001 incident
36
Hecksher v. Fairwinds Baptist Church, Inc., 115 A.3d 1187, 1199 (Del. 2015)
(internal citations omitted).
37
Jardel Co. v. Hughes, 523 A.2d 518, 530 (Del. 1987).
38
11 Del. C. § 231.
39
Brown v. United Water Del., Inc., 3 A.3d 272, 276 (Del. 2010) (citing Pauley, 848
A.2d at 576).
11
involving Baby Jarod. Plaintiffs may be able to establish that the Licensing
Supervisor’s decision was a gross deviation from the licensing and supervision
requirements set forth under DCCA.40 Moreover, the Court cannot determine if the
decision to issue Ms. Handy’s license was “the result of something being
undiscoverable, mere negligence, or a pattern of institutional indifference amounting
to wanton negligence on the part of [a State employee].” 41 Accepting all well-
pleaded allegations as true, the Court finds a reasonably conceivable set of
circumstances susceptible to proof under which the Licensing Supervisor acted with
gross negligence by issuing a daycare license to Ms. Handy after the 2001 incident
involving Baby Jarod. Accordingly, the Court cannot dismiss Plaintiffs’ claims
against the Licensing Supervisor as a matter of law under Section 4001(3).
State Defendants assert that Plaintiffs fail to specify the actions by the
Licensing Supervisor which support a claim of gross negligence.42 This Court
disagrees. First, even if Plaintiffs fail to plead gross negligence with the requisite
particularity, the Court cannot dismiss Plaintiffs’ claims under Section 4001 as a
matter of law without determining whether the alleged conduct is discretionary or
ministerial in nature. In addition, the Complaint contains thirty-four separate
40
See 31 Del. C. § 344(b)–(c); 9 Del. Admin. C. § 101-1.0. et seq.
41
McCaffrey v. City of Wilmington, 133 A.3d 536, 557 n.23 (Strine, C.J., dissenting).
42
See Super. Ct. Civ. R. 9(b) (“In all averments of fraud, negligence or mistake, the
circumstances constituting fraud, negligence or mistake shall be stated with
particularity.”).
12
instances specifying the alleged gross indifference with which the Licensing
Supervisor licensed and/or failed to supervise Ms. Handy and the Daycare Center.
Accepting these allegations as true, the Court is satisfied that Plaintiffs have
adequately alleged “an extreme departure from the ordinary standard of care” 43 to
avoid summary disposition of their claims at the pleading stage. Moreover, the
Court finds that State Defendants have sufficient notice of the “act or omissions by
which it is alleged that a duty has been violated in order to enable the preparation of
a defense,”44 and that the Complaint alerts the Licensing Supervisor to her potential
liability45 without merely making a “general statement of the facts which admits of
almost any proof to sustain it.”46
Accepting the well-pleaded allegations in the Complaint as true with all
reasonable inferences made in favor of Plaintiffs, dismissing the claims against the
Licensing Supervisor is not appropriate as a matter of law under Section 4001. This
conclusion is not a final determination regarding the Licensing Supervisor’s actions
or a finding of gross or wanton negligence. Rather, the Court finds that there is a
43
Hecksher, 115 A.3d at 1199.
44
Doe 30’s Mother v. Bradley, 58 A.2d 429, 443 (Del. Super. 2012) (quoting State
Farm Fire & Cas., Co. v. Gen. Elec. Co., 2009 WL 5177156, at *5 (Del. Super. Dec.
1, 2009)). See also Ruof v. Dilks, 2015 WL 5438698, at *2 (Del. Super. June 16,
2015) (“Rule 9(b) ensures that a defendant is put on sufficient notice so that it may
defend itself against a plaintiff’s allegations.”) (internal quotation omitted).
45
Browne v. Robb, 583 A.2d 949, 953 (Del. 1990).
46
Id. (quoting Mancino v. Webb, 274 A.2d 711, 713 (Del. Super. 1971)).
13
reasonably conceivable set of circumstances susceptible to proof where Plaintiffs
could satisfy the applicable standard to overcome the Licensing Supervisor’s
qualified immunity under Section 4001. Therefore, the Court cannot dismiss
Plaintiffs’ claims against the Licensing Supervisor as a matter of law under Section
4001.47
ii. Plaintiffs state claims upon which relief may be granted against the
Licensing Supervisor under the public duty doctrine.
To the extent that the allegations against the Licensing Supervisor relate to an
exercise of discretion, the public duty doctrine may preclude Plaintiffs’ claims.48
However, the public duty doctrine would not apply to claims against the Licensing
Supervisor arising from ministerial conduct.49 Accepting the well-pleaded
allegations in Plaintiffs’ Complaint as true, the record is insufficient to determine
whether the Licensing Supervisor’s actions were discretionary, and there is a
reasonably conceivable set of circumstances susceptible to proof under which the
decision to issue a daycare license to Ms. Handy was ministerial. Because the Court
47
See Hale v. Elizabeth W. Murphey Sch., Inc., 2014 WL 2119652, at *5–6 (Del.
Super. May 20, 2014).
48
As previously discussed, Plaintiffs could proceed under the public duty doctrine
for discretionary conduct if Plaintiffs establish (i) an assumption of an affirmative
duty to act; (ii) knowledge that inaction could lead to harm; (iii) some form of direct
contact between State Defendants and the injured party; and (iv) justifiable reliance
on an affirmative undertaking by State Defendants. Minner, 2013 WL 871784, at *4
(quoting Castellani, 751 A.2d at 938).
49
J.L., 33 A.3d at 916 (internal citations omitted).
14
cannot determine the applicability of the public duty doctrine on the current record,
the Court declines to dismiss Plaintiffs’ claims against the Licensing Supervisor as
a matter of law on this basis.
III. CONCLUSION
Plaintiffs fail to establish jurisdiction over the Licensing Entity under the
doctrine of sovereign immunity. Accordingly, the Licensing Entity must be
dismissed as a party pursuant to Rule 12(b)(1). However, the Court hereby finds
that, accepting all well-pleaded allegations as true and viewing the Complaint in a
light most favorable to Plaintiffs, Plaintiffs state a claim upon which Plaintiffs could
recover against the Licensing Supervisor. Therefore, the Court declines to dismiss
the claims against the Licensing Supervisor as a matter of law pursuant to Rule
12(b)(6).
NOW, THEREFORE, this 21st day of July, 2017, State Defendants’
Motion to Dismiss is hereby GRANTED IN PART and DENIED IN PART. The
Delaware Department of Services for Children, Youth and Their Families,
Office of Child Care Licensing is dismissed as a party to this action. Plaintiffs’
claims against Supervisor of Childcare Licensing Vivian Murphy may proceed.
IT IS SO ORDERED.
Andrea L. Rocanelli
_____________________________
The Honorable Andrea L. Rocanelli
15