J.S and Y.S. v. Edgemoor Community Center ( 2024 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
J.S. AND Y.S., INDIVIDUALLY )
AND GUADIANS AD LITEM FOR )
R.S., A MINOR CHILD AND S.L. )
AND M.L., INDIVIDUALLY AND )
GUARDIANS AD LITEM FOR T.L., )
A MINOR CHILD, AND M.F. and ) C.A. No. N23C-06-110 CLS
S.G-R., INDIVIDUALLY, AND )
GUARDIANS AD LITEM FOR M.G., )
A MINOR CHILD, )
)
Plaintiffs, )
)
v. )
)
EDGEMOOR COMMUNITY )
CENTER, INC., d/b/a BELLEVUE )
COMMUNITY CENTER, STACEY )
SIMS, CRISTINA YENSSHAW, )
JOSEPH WISNIEWSKI AND DIONE )
ALLEN, )
)
Defendants. )
Date Submitted: October 31, 2023
Date Decided: January 11, 2024
Upon Defendants’ Motion to Dismiss Count IV of Plaintiffs’ Complaint.
GRANTED.
ORDER
Adam F. Wasserman, Esquire, Ciconte Wasserman & Scerba, LLC, Wilmington,
Delaware, 19801, and Chase T Brockstedt, Esquire, Baird Mandalas Brockstedt &
Federico, LLC, Lewes, Delaware 19958, Attorneys for Plaintiffs.
Maria Granaudo-Gesty, Esquire, Burns White LLC, Wilmington, Delaware,
19803, Attorneys for Defendants, Edgemoor Community Center Inc. d/b/a
Bellevue Community Center, Joseph Wisniewski and Dione Allen.
SCOTT, J.
1
INTRODUCTION
Before the Court is Defendants Edgemoor Community Center, Inc. d/b/a
Bellevue Community Center, Joseph Wisniewski and Dione Allen’s (“Defendants”)
Motion to Dismiss Count IV Plaintiffs’ Complaint. The Court has reviewed the
Motion and the Response. For the reasons below, Defendants’ Motion to Dismiss
Count IV of Plaintiffs’ Complaint is GRANTED.
BACKGROUND
Plaintiffs initiated the instant action by filing a Complaint on June 13, 2023.
Plaintiffs assert several causes of action against Defendants arising from alleged
inappropriate conduct by Defendants while minor-children were under the care of
Defendant Edgemoor Community Center, Inc., d/b/a Bellevue Community Center
(“BCC”) in the infant classroom. According to the Complaint, minor-children were
infant-aged children enrolled in the BCC infant care room between July 2022 and
May 2023. Plaintiffs assert that during that time Co-Defendant teachers, Stacey Sims
(“Ms.Sims”) and Cristina Yenshaw (“Ms.Yenshaw”) committed acts of abuse and
neglect against the infant Minor Children. Investigations by the local police and the
Delaware Office of Child Care Licensing (“OCCL”) followed. Plaintiffs’ Complaint
makes various allegations regarding Defendants, the internal investigation, outside
investigations, and communication with parents of the infants in the classroom,
including Plaintiff-Parents. Plaintiffs assert several causes of actions against
2
Defendants arising from the aforementioned incidents and conducts. Count IV, the
subject of this Motion to Dismiss, specifically asserts Negligent Infliction of
Emotional Distress, for Plaintiff-Parents against all Defendants.
STANDARD OF REVIEW
The test for sufficiency of a complaint challenged by a Rule 12(b)(6) motion
to dismiss is whether a plaintiff may recover under any reasonably conceivable set
of circumstances susceptible of proof under the complaint. 1 In making its
determination, the Court must accept all well-pleaded allegations in the complaint
as true and draw all reasonable factual inferences in favor of the non-moving party.2
The complaint must be without merit as a matter of fact or law to be dismissed. 3
Therefore, if the plaintiff can recover under any conceivable set of circumstances
susceptible of proof under the complaint, the motion to dismiss will not be granted.4
1
Spence v. Funk, 396 A.2d 967, 968 (1978); see Cambium Ltd. v. Trilantic Capital
Partners III L.P., 2012 WL 172844, at *1 (Del. Jan. 20, 2012)(citing Cent. Mortg.
Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 537 (Del. 2011)).
2
Ramunno v. Cawley, 705 A.2d 1029, 1034-36 (Del. 1998); Nix v. Sawyer, 466 A.2d
407, 410 (Del. Super. Ct.1983).
3
Diamond State Tel. Co. v. University of Delaware, 269 A.2d 52 (Del. 1970).
4
Ramunno, 705 A.2d at 1034; see Cambium, 2012 WL 172844, at *1 (citing Cent.
Mortg., 27 A.3d at 537)).
3
DISCUSSION
Plaintiff Parents fail to State a Claim for NIED
The elements required for a claim of negligent infliction of emotional distress
are: (1) negligence causing fright to someone; (2) that was in the ‘zone of danger;’
which, (3) produces physical consequences to that person because of the
contemporaneous shock.5 Defendants contend Plaintiff Parents failed to plead the
zone of danger element, as well as the physical consequences because of the
contemporaneous shock.
Zone of Danger: Robb, Lupo, Armstrong, and Boas
The “zone of danger” prong was adopted by the Delaware Supreme Court in
Robb v. Pennsylvania Railroad Co.6 The plaintiff in Robb claimed physical injury
arose from the fright caused by the alleged negligence of the defendant railroad
company which caused her car to stall on the tracks.7 Zone of danger is defined as
“that area where the negligent conduct causes the victim to fear for his or her own
safety.”8 The court ruled, in the context of a sudden, unexpected incident, zone of
danger is an element of NIED.9 However, the court warned that it was not
5
Rhinehardt v. Bright, 2006 WL 2220972, at *5 (Del. Super. Ct. May 19, 2006).
6
210 A.2d 709, 711 (Del. 1965).
7
Id.8
Elsey-Jones v. Gullion, 2018 WL 2727574, at *5 (Del. Super. Ct. June 5, 2018).
9
Robb, 210 A.2d at 711.
4
“concerned with the situation ... wherein fright arose from the peril of another and
plaintiff was not in the path of the danger created by the negligence asserted.” 10 Since
Robb, this Court has addressed the application of zone of danger element where
plaintiff alleges direct injuries due to defendant's negligence outside of the sudden,
unexpected incident context11 and the issue left open in Robb.12
Plaintiffs rely on Fanean v. Rite Aid Corp. of Delaware, Inc.13, Lupo v.
Medical Center of Delaware, Inc.14, and Armstrong v. A.I. DuPont Hospital for
Children.15 Defendants contend the facts before this Court relate to Boas v.
Christiana Care Health Services, Inc.16
Plaintiffs cite to Fanean for the premise that “[w]hile a claim for negligent
infliction of emotional distress normally requires a plaintiff to be within the zone of
danger, there are exceptions to this conditions.” However, the Fanean court did not
provide an exception to the zone of danger element. Rather, it acknowledged that
the facts of that case complicate the “traditional analysis.”17 In Fanean, the Court
10
Id.
11
Lupo v. Medical Center of Delaware, Inc., 1996 WL 111132, at *3 (Del. Super.
Ct. Feb. 7, 1996).
12
Armstrong v. A.I. DuPont Hospital for Children, 60 A.3d 414, 424 (Del. Super.
Ct. 2012).
13
984 A.2d 812 (Del. Super. Ct. 2009).
14
1996 WL 11113215
60 A.3d 41416
2023 WL 4842102.
17
Fanean, 984 A.2d at 820.
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explained that plaintiffs were in the zone of danger when defendants improperly
disclosed her confidential prescription records to her family members.18 The court
cautioned that Plaintiff may not have been able to state a claim for NIED had the
information been disclosed to a person unaffiliated with plaintiff.19 Accordingly,
Fanean does not provide for an exception to the zone of danger requirement, but
interpreted it differently in a non-traditional setting. Meaning, to survive a motion to
dismiss, Plaintiffs must have alleged they were within the zone of danger.
In Lupo, plaintiffs alleged the defendant hospital told plaintiffs that their child
was stillborn, when in fact, the child was born alive and lived for two hours.20
Plaintiffs contended they suffered emotional distress due to the “lost opportunity to
spend time with their baby while it was alive” which caused plaintiffs’ physical
injuries in the form of sleeplessness, headaches, crying spells, rage, nervousness,
guilt, eating disorders, and depression.21 The Lupo court explained that “the instant
case is distinct from those emotional distress cases where an injury to a third person
caused plaintiff mental anguish or where sudden, unexpected incident caused
18
Id.19
Id.20
Lupo, 1996 WL 111132, at *1.
21
Id. at *2.
6
plaintiff fright or shock.”22 Thus, this Court found the zone of danger element not
applicable where plaintiffs allege direct injuries due to defendant's negligence.23
In Armstrong, plaintiffs’ son underwent a tonsillectomy.24 After surgery,
defendant hospital discharged the child, who plaintiffs allege, was still unconscious
from the surgery and unresponsive.25 A few hours after being discharged, plaintiffs
found their son unresponsive and not breathing.26 In addressing the issue left open
in Robb, the Court held that, when fright arises from the peril of another and plaintiff
is not in the zone of danger, “a claim for [NIED] is a viable cause of action where
the negligence is continuing and occurs in the third person's presence.” 27 Thus, the
Armstrong court extended the zone of danger to apply to plaintiffs as third parties
who witnessed the active peril caused by the negligence of others.
In Boas, plaintiff parents alleged agents of defendant hospital and defendant
hospital services performed an autopsy of their stillborn baby in defiance with
plaintiff parents’ oral and written instructions that no autopsy be performed.28
Plaintiff parents contend they suffered emotional distress and physical injury, in the
22
Id. at *3
23
Id.
24
Armstrong, 60 A.3d at 416.
25
Id.26
Id. at 417.
27
Id. at 424.
28
Boas, 2023 WL 4842102 at *1
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form of depression and sleeplessness, when they discovered the fetal remains were
autopsied.29 The Boas court examined Lupo and Armstrong, finding that the facts of
Boas were distinguishable from them.30 The Court explained the plaintiff parents
fright arose from the peril of another, their fetus so Lupo was not applicable because
plaintiff parents did not allege direct injuries. Further, the Court explained the
plaintiff parents did not allege the negligence occurred in their presence or
defendants’ negligence continued. So, unlike Armstrong, the zone of danger could
not be extended to apply to plaintiff parents. Lastly, in a footnote, Boas explains that
Fanean is distinguishable and “does not stand for the proposition one is in the zone
of danger when receiving knowledge of the negligence.”31
This Court adopts the same reasoning set forth in Boas in finding both Lupo
and Armstrong are distinguishable from the facts before this Court because Plaintiff
Parents do not allege direct injuries, nor did they allege the negligence occurred in
their presence or defendant’s negligence continued. Plaintiff Parents claim the
Defendants negligence is based on the following breaches:
“(a) Deliberately concealing the abuse and neglect that was being inflicted
against the Minor Children; (b) Failing to notify or warn the Plaintiff Parents, or
State authorities, of the abuse and neglect, in general, and in the face of a duty to
speak; (c) Failing to provide adequate care to Minor Plaintiffs; (d) Violating the
safety, health, educational, and developmental policies and standards required under
29
Id.30
Id. at *4.
31
Id. at n. 56.
8
State law and regulations; (e) Failing to exercise reasonable care or diligence under
the circumstances; and (f) Performing such other acts from making such other
admissions constituting negligence, as may become evident during the course of
discovery or throughout the trial of this matter.”
Such allegations are not direct injuries to Plaintiff Parents nor do Plaintiff
Parents allege the negligence occurred in their presence or defendants’ negligence
continued, therefore the Plaintiff Parents must allege they were in the zone of
physical danger. Plaintiff Parents fail to adequately plead that they were in the zone
of danger. Therefore, Plaintiff Parents failed to state a claim for NIED.
Plaintiffs to allege physical injury associated with NIED
It is well settled under Delaware law that to recover under a claim for NIED,
a plaintiff must prove evidence of a present physical injury.32 The Complaint states
Plaintiff Parents suffered “severe mental anguish and emotional distress, and
overwhelming feelings of fear, worry, sadness, anxiety, betrayal, anger, and
outrage.” Nothing in the list above relates to produces physical consequences to
Plaintiff Parents because of the contemporaneous shock of the alleged abuse to their
children. In a motion to dismiss, this Court will only look at the Complaint and
accept those allegations. Plaintiff Parents explain in their opposition that they suffer
from nausea and sleeplessness; however, no such allegation is present in their
32
Garrison v. Medical Center of Delaware, Inc., Del Supr., 581 A.2d 288, 293
(1989).
9
Complaint. As such, Plaintiffs fail to allege physical consequences from Defendants
actions, necessary element for their NIED claim. Therefore, Plaintiff Parents failed
to state a claim for NIED.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss Count IV of
Plaintiffs’ Complaint is GRANTED.
/s/ Calvin L. Scott
Judge Calvin L. Scott, Jr.
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