Maple v. Delaware Department of Natural Resources and Environmental Control ( 2023 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ANTERINE MAPLE, et al., Plaintiffs, v. DELAWARE DEPARTMENT OF Civil Action No. 22-857-GBW NATURAL RESOURCES AND ENVIRONMENTAL CONTROL, et al., Defendants. MEMORANDUM ORDER Pending before the Court are the motions of Defendants, Davis, Dowden & Feindel, Inc., Ken Eaton, PE, Gary Williams, PE (“DBF”), the Estate of Edward T. Fulford (“Fulford”), Mason Construction Company (“Mason”), Kingfisher Environmental Services (“Kingfisher”), Daniel J. Brower, Sarah W. Cookey, Frank M. Piorko, Charles E. Williams, II, and the Delaware Department of Natural Resources and Environmental Control (“DNREC”), and John C. Beckering, PE and Frank J. Cianfrani’s (United States Army Corp of Engineers, i.e. “USACE”) (collectively, “Defendants”), to dismiss Plaintiffs’ Anterine Maple, et. al’s (“Maple”) complaint. See D.I. 30; D.I. 35; D.I. 36; D.I. 52; D.I. 57; D.I. 80. Having reviewed the parties’ briefing, the Court grants- in-part and denies-in-part Defendants’ motions to dismiss. See id. Defendants’ motions to dismiss are granted-in-part to the extent that Defendants move to dismiss Maple’s claims under Delaware law. The Court will issue a separate Order regarding Defendants’ motion to dismiss Maple’s claims under Federal law following the parties’ briefing on that issue, as well as a separate Order regarding Maple’s Motion to Change Venue. See D.I. 85; D.I. 33. I. | BACKGROUND! On February 8, 2014, DNREC completed a Maintenance Dredging and Beach Nourishment Project (the “Project”) of the federal navigation channel at the mouth of the Murderkill River estuary entrance of the Delaware Bay. D.I. 46 at 2-4. The Project was awarded to defendant Manson. Jd. Manson completed the Project in accordance with engineering plans and specifications prepared by DBF and Fulford. Jd. Maple alleges that the Project amplified the tidal forces in the mouth of the Murderkill River and created an increased foreseeable extreme drowning hazard to unsuspecting recreational swimmers during the tidal change. Jd. On June 30, 2020, day-vacation-beachgoers Kevin George, Jr., Zion George, Jr., Amir Harris, and Destiny Deluca arrived at South Bowers Beach, Kent County, Delaware. Jd. Around 2:47 p.m., Kevin George, Jr., Zion George, Jr., and Amir Harris entered the Murderkill River near the entrance channel of the Delaware Bay at South Bowers Beach to swim. Id. No signs were posted warning them that the waters of the Murderkill River near the entrance channel of the Delaware Bay at South Bowers Beach were dangerous during the tidal change. Jd. Upon entering the water Kevin George, Jr., Zion George, Jr., and Amir Harris discovered that the shallower water of the sand bar jetty suddenly dropped off at an underwater ledge descending to a depth of around eight (8) feet. Jd. As a result, Kevin George, Jr., Zion George, Jr., and Amir Harris unexpectedly found themselves in water over their heads. Jd. The strength of the tidal current pulled them under the surface of the Murderkill River and away from the shoreline. Jd. While Kevin George, Jr., Zion George, Jr., and Amir Harris struggled to surface, Destiny Deluca ran to their aid, entering the Murderkill River in an attempt to rescue them. Jd. Ms. Deluca was also pulled under the ' Under Rule 12(b)(6), the Court must accept as true all factual allegations in the Complaint and view those facts in the light most favorable to the plaintiff. See Fed. Trade Comm’n v. AbbVie Inc, 976 F.3d 327, 351 (3d Cir. 2020). surface. Jd. Amir Harris and Destiny Deluca were able to reach the shoreline and save themselves from drowning. Jd. Tragically, Kevin George, Jr. and Zion George, Jr. drowned. Id. On June 24, 2022, Maple filed the instant action asserting causes of actions under the 14th Amendment, 42 U.S.C.A. § 1983, 10 Del. C. § 4001 (the Delaware Tort Claims Act), the Delaware Constitution, and other Delaware statutes for, inter alia, negligence, professional negligence, wrongful death, intentional infliction of emotional distress, and negligent infliction of emotional distress. See D.I. 1. Il. LEGAL STANDARD . To state a claim on which relief can be granted, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief... .” Fed. R. Civ. P. 8(a)(2). Such a claim must plausibly suggest “facts sufficient to ‘draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Doe v. Princeton Univ., 30 F.4th 335, 342 (3d Cir. 2022) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). “A claim is facially plausible ‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Klotz v. Celentano Stadtmauer & Walentowicz LLP, 991 F.3d 458, 462 (3d Cir. 2021) (quoting Iqbal, 556 U.S. at 678). But the Court will “‘disregard legal conclusions and recitals of the elements of a cause of action supported by mere conclusory statements.’” Princeton Univ., 30 F.4th at 342 (quoting Davis v. Wells Fargo, 824 F.3d 333, 341 (3d Cir. 2016)). “