Cantatore v. University of Delaware

SUPERIOR COURT
OF THE
STATE OF DELAWARE

MEGHAN A. ADAMS LEONARD L. WILLIAMS JUSTICE CENTER
JUDGE 500 NORTH KING STREET, SUITE 10400
WILMINGTON, DELAWARE 19801
(302) 255-0634

June 30, 2021

Adam F. Wasserman, Esq. James D. Taylor, Jr., Esq.
Ciconte Wasserman & Scerba, LLC Saul Ewing Arnstein & Lehr, LLP
1300 N. King Street 1201 North Market Street
P.O. Box 1126 Suite 2300
Wilmington, DE 19899 Wilmington, DE 19801

RE: Gina Cantatore v. University of Delaware
C.A. No.: N20C-06-241 MAA .

Dear Counsel:
This is my decision on the University of Delaware’s (“UD” or the

“University”) motion to dismiss in the above-referenced action. The plaintiff, Gina

Cantatore (“Cantatore”), filed suit following her on-campus arrest by Officer

Morgan Fountain (“Fountain” or “Officer Fountain”) of the Newark Police

Department (“NPD”). This serves as a companion opinion to my earlier decision on

Officer Fountain’s partial motion to dismiss.1

1
See C.A. No. N20C-06-241 MAA, Docket (“Dkt.”) 39 (“Fountain Opinion”).
 For the reasons that follow, I conclude that the Amended Complaint 2 fails to

state reasonably conceivable claims for negligence, negligent infliction of emotional

distress, premises liability, and intentional infliction of emotional distress (Counts I-

IV). The University’s motion is granted with prejudice.

I. Background3

On September 14, 2019, Officer Morgan Fountain of the Newark Police

Department encountered two UD students on E. Cleveland Avenue.4 As a result of

the encounter, UD’s Office of Student Conduct (“OSC”) contacted Cantatore by

email on September 17, 2019. The following day, Cantatore visited OSC’s office

to follow up on the email and confirm its legitimacy.5 Cantatore met with OSC

Program Coordinator Vincent Jackson, who let her know that as a result of the

September 14, 2019 incident, she was being charged with violations of the

University’s alcohol and disruptive conduct policies.6 Though Cantatore was not

informed by Jackson that the meeting was the official Pre-Hearing Meeting

regarding the incident, he had her fill out a form entitled “Acknowledgment of

2
See Dkt. 23, Amended Complaint (“Am. Compl.”).
3
For the purposes of this motion, I draw the facts from Cantatore’s Amended
Complaint.
4
Am. Compl. ¶ 8. Officer Fountain identified Cantatore as the UD student who
fled. Id. ¶ 12.
5
Id. ¶ 15.
6
Id. ¶ 17.

2
Rights and Privacy and Choice of Pre-Hearing Outcome.”7 Jackson told Cantatore

that she could be arrested if she did not fill out the form, but if she signed the form

and denied the charges, it could prevent arrest.8 He also recommended that

Cantatore contact the Newark Police Department at some point. Finally, Jackson

informed Cantatore that a hearing on the school’s charges would be held on

September 26, 2019, a date selected so Officer Fountain could attend the hearing.9

On September 24, 2019, two days before the OSC hearing, Officer Fountain

arrested Cantatore outside of her classroom on University of Delaware’s campus.10

Officer A. Burham of the University of Delaware Police Department (“UDPD”)

accompanied Fountain throughout the process, including assisting Fountain in

obtaining Cantatore’s class schedule.11

Cantatore filed her initial complaint on June 22, 2020.12 The University filed

a motion to dismiss on September 28, 2020.13 The University agreed by stipulation

to withdraw its initial briefing, which would be renewed upon the filing of an

amended complaint.14 Cantatore filed the Amended Complaint on November 24,

7
Id. ¶¶ 18–19.
8
Id. ¶ 20.
9
Id. ¶¶ 21, 23.
10
Id. ¶ 37.
11
Id. ¶¶ 30–32, 43.
12
Dkt. 1, Complaint (“Compl.”).
13
See Dkt. 13.
14
See Dkt. 21.

3
2020.15 The University filed a subsequent motion to dismiss on December 10,

2020.16 Oral argument on the motion was held on March 8, 2021.

II. Legal Analysis

On a motion to dismiss, plaintiffs are entitled to “all reasonable factual

inferences that logically flow from the particularized facts alleged.”17 The Court

“need not, however, give weight to conclusory allegations of fact or law.”18

Conclusory allegations lack specific supporting factual allegations.19 “A complaint

will not be dismissed unless the Court determines that the plaintiff would not be

entitled to recover under any reasonably conceivable set of circumstances

susceptible of proof.”20 In essence, if a complaint is completely unviable—a

determination that may be made as a matter of law or fact—it must necessarily be

dismissed.21

Rule 9(b) states that “[i]n all averments of fraud, negligence or mistake, the

circumstances constituting fraud, negligence or mistake shall be stated with

15
Dkt. 23.
16
Dkt. 28.
17
Brehm v. Eisher, 746 A.2d 244, 253 (Del. 2000).
18
Gelfman v. Weeden Invs., L.P., 792 A.2d 977, 984 (Del. Ch. 2001).
19
See, e.g., Woodwerx, Inc. v. Delaware Dep’t of Transp., 925 A.2d 505 (Del.
2007) (TABLE).
20
Savor, Inc. v. FMR Corp., 2001 WL 541484, at *2 (Del. Super. Apr. 24, 2001),
aff’d, 812 A.2d 894 (Del. 2002).
21
Id.

4
particularity.”22 The purpose of the Rule’s particularity requirement is to: “(1)

provide defendants with enough notice to prepare a defense; (2) prevent plaintiffs

from using complaints as fishing expeditions to unearth wrongs to which they had

no prior knowledge; and (3) preserve a defendant’s reputation and goodwill against

baseless claims.”23 Rule 9(b)’s particularity requirement is case-specific.24

In her Amended Complaint, Cantatore asserts four claims against UD:

negligence (Count I); negligent infliction of emotional distress (Count II); premises

liability (Count III); and intentional infliction of emotional distress (Count IV). In

order to prevail on the first three claims, Cantatore must establish that the University

owed her a duty, as the claims are all rooted in negligence. 25 Absent such a duty,

Cantatore cannot prove the University was negligent and her claims must fail as a

matter of law. The Court will first address these claims before addressing

Cantatore’s intentional infliction of emotional distress claim, which requires a

showing of extreme and outrageous behavior on the part of the defendant.

22
Super. Ct. Civ. R. 9(b).
23
In re Benzene Litig., 2007 WL 625054, at *6 (Del. Super. Feb. 26, 2007)
(citing Stuchen v. Duty Free Int’l, Inc., 1996 WL 33167249, at *5 (Del. Super. Apr.
22, 1996)).
24
Id. at *6.
25
To prove negligent infliction of emotional distress, a plaintiff must show: “(1)
negligence causing fright to someone; (2) in the zone of danger; (3) producing
physical consequences to that person as a result of the contemporaneous shock.” See
Rhinehardt v. Bright, 2006 WL 2220972, at *5 (Del. Super. July 20, 2006) (citing
Snavely ex rel. Snavely v. Wilmington Med. Ctr., Inc., 1985 WL 552277, at *1 (Del.
Super. Mar. 18, 1985)).

5
 A. Counts I-III

It is axiomatic under Delaware law that, for a defendant to be held liable in

negligence, they must owe a plaintiff a duty of care. As then-Judge Slights

eloquently noted in Doe 30’s Mother v. Bradley, “[r]egardless of how morally,

ethically or socially deplorable a defendant’s conduct may be viewed by other

constituencies, in the eyes of the law, the defendant may not be held to answer in

negligence unless and until the court determines, as a matter of law, that the

defendant owed a duty of care to the plaintiff.”26 Duty is a question of “whether the

relationship between the actor and the injured person gives rise to any legal

obligation on the actor’s part for the benefit of the injured person.”27 Such a

determination is a matter of law and is to be decided by the Court. 28 Delaware law

has made clear that the duties owed by universities to students are not limitless.29

In this case, Cantatore claims that the University owed her a bevy of duties.30

She argues that UD’s breach of these duties ultimately led to the harm she allegedly

suffered due to her arrest by Officer Fountain. Cantatore’s Amended Complaint,

26
Doe 30’s Mother v. Bradley, 58 A.3d 429, 436 (Del. Super. 2012).
27
Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011).
28
Riedel v. ICI Americas Inc., 968 A.2d 17, 20 (Del. 2009).
29
See Furek v. Univ. of Delaware, 594 A.2d 506, 521 (Del. 1991) (“The
university is not an insurer of the safety of its students nor a policeman of student
morality, nonetheless, it has a duty to regulate and supervise foreseeable dangerous
activities occurring on its property.”)
30
See Am. Compl. ¶¶ 59, 65.

6
however, provides no legal basis for almost all of these alleged duties. As such, the

Court confines its analysis to the duty owed by a college to its students as set forth

by Furek v. University of Delaware, namely as it relates to “the acts of third persons

which are both foreseeable and subject to university control.”31 The question for the

Court, then, is whether Fountain’s on-campus arrest of Cantatore was both

foreseeable and subject to UD’s control such that UD had a duty to protect Cantatore

from it.

Officer Fountain’s arrest of Cantatore outside of Cantatore’s classroom in the

manner in which it transpired was not foreseeable.32 “If the place or character of

[UD’s] business, or [its] past experience, is such that [it] should reasonably

anticipate careless or criminal conduct on the part of the third persons, either

31
Furek v. Univ. of Delaware, 594 A.2d 506, 521 (Del. 1991). Cantatore also
claims that she was owed a duty by the University of Delaware under Restatement
(Second) § 323, as in Furek, which supported a claim under § 323 and on premises
liability grounds. Furek and its progeny, however, do not stand for the proposition
that one is automatically accorded a duty under § 323, even if the alleged harm
occurs on campus. See Doe v. Bradley, 2011 WL 290829, at *9 (Del. Super. Jan.
21, 2011); see also Rogers v. Christina Sch. Dist., 73 A.3d 1, 9 (Del. 2013); Rogers
v. Delaware State Univ., 905 A.2d 747 (Del. 2006) (TABLE). Rather, a claim under
§ 323 is only viable if the university is aware of and has addressed the danger such
that it becomes an assumed duty. Here, there is no such express policy or known
danger related to on-campus, outside of the classroom arrests of students. The Court,
accordingly, further confines its analysis to the duty owed by a university to students
related to acts that are foreseeable and subject to university control.
32
Throughout her briefing and at oral argument, Cantatore confuses the
principles of foreseeability under Restatement (Second) § 344, foreseeability as it
pertains to superseding causes, and the role harm plays in the foreseeability analysis.

7
generally or at some particular time, [UD] may be under a duty to take precautions

against it, and to provide a reasonably sufficient number of servants to afford a

reasonable protection.”33 Here, there are no facts alleged to suggest that the

University of Delaware would “know or have reason to know, from past experience

that there [was] a likelihood of conduct” on the part of non-UDPD police officers

executing legal arrest warrants that would have been “likely to endanger the safety

of the visitor.”34 Unlike Furek, nothing in Cantatore’s Amended Complaint suggests

that the University has any type of assumed duty to protect students from conduct

akin to Officer Fountain’s arrest of Cantatore.

Fountain’s conduct was not subject to the University’s control. Officer

Fountain had a legal right to execute an arrest warrant for Cantatore anywhere on

UD’s property.35 The Court accepts as true Cantatore’s allegation that “upon

information and belief, NPD will not execute an arrest warrant in UD buildings or

33
Restatement (Second) § 344 cmt. f.
34
Id.
35
See 11 Del. C. § 1911(d) (“An ‘on-duty’ police officer may arrest at any
location in the State any person for any offense committed within the jurisdiction of
the officer’s employing agency and for whose arrest a warrant has been issued. The
“on-duty” police officer shall, where acting outside of the officer’s jurisdiction, take
reasonable measures to notify the primary jurisdictional police agency of the
intended time and place of the execution of the arrest warrant.”); see also 14 Del. C.
§ 5104(b)(3) (noting that the granting of jurisdiction and authority to UD’s police
department “shall neither reduce nor restrict the jurisdiction of other duly appointed
peace officers who are empowered to enforce federal or state laws or applicable
county or city ordinances on the property of the University of Delaware.”)

8
classrooms without first obtaining permission from UD, or UDPD, or their agents or

employees.”36 This does not, however, suggest that Officer Fountain’s actions were

subject to UD’s control. Rather, this is more in line with the statutory charge of 11

Del. C. § 1911(d) to inform the primary jurisdictional agency about the location of

an arrest. The Court does not accept as true Cantatore’s conclusory allegation that

“[u]pon information and belief, UD and its agents and employees have control over

whether to allow NPD to arrest students in class.”37

Accordingly, the University did not owe Cantatore any duty related to Officer

Fountain’s on-campus arrest of Cantatore. Therefore, Cantatore’s negligence,

premises liability, and negligent infliction of emotional distress claims are dismissed

with prejudice.

B. Count IV

Cantatore’s claim against UD for intentional infliction of emotion distress

(“IIED”) also fails. In order for a defendant to be held liable for IIED, their “action

must be extreme and outrageous and there must be a present physical injury.”38

“Defendant’s extreme and outrageous conduct may be intentional or reckless.”39

“The alleged conduct must be behavior that goes beyond all possible bounds of

36
Am. Compl. ¶ 51.
37
Am. Compl. ¶ 52.
38
Rea v. Midway Realty Corp., 1989 WL 100452, at *4 (Del. Super. Aug. 23,
1989).
39
Id.

9
decency, is atrocious, and utterly intolerable in a civilized community.”40 The

Amended Complaint contains no facts that evince this type of behavior on the part

of the University. As such, this claim is likewise dismissed with prejudice.

III. Conclusion

For the foregoing reasons, the University of Delaware’s motion to dismiss is

granted with prejudice.

IT IS SO ORDERED.

cc: Prothonotary
Timothy S. Martin, Esq. (by File&ServeXpress)
Daryll M. Hawthorne-Searight, Esq. (by File&ServeXpress)

40
Khushaim v. Tullow Inc., 2016 WL 3594752, at *9 (Del. Super. June 27, 2016)
(citing Spence v. Cherian, 135 A.3d 1282, 1289 (Del. Super. 2016), corrected (May
25, 2016); Mattern v. Hudson, 532 A.2d 85, 86 (Del. Super. 1987) (internal
quotations omitted)).

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