Rishell v. Hartly Volunteer Fire Company ( 2024 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
GRACE J. RISHELL, )
)
Plaintiff, )
)
v. ) C.A. No. N22C-08-058 CEB
)
HARTLY VOLUNTEER FIRE )
COMPANY, a domestic corporation, )
)
Defendant. )
Submitted: December 5, 2023
Decided: January 31, 2024
MEMORANDUM OPINION
Upon Consideration of Defendants’ Renewed Motion to Dismiss,
GRANTED
Gary S. Nitsche Esquire, Caroline A. Kaminski, Esquire, Nitsche & Fredricks, LLC,
Wilmington, Delaware. Attorneys for Plaintiff.
Daniel A. Griffith, Esquire, Thomas Wallace, Esquire, Whiteford Taylor & Preston,
LLP, Wilmington, Delaware. Attorneys for Defendant.
BUTLER, R.J.
BACKGROUND
An ambulance was called to Plaintiff’s residence.1 The Plaintiff had
previously suffered a stroke and had heart issues. Her daughter called for the
ambulance and while waiting, family members moved vehicles out of the driveway.2
The ambulance, from Defendant Hartly Volunteer Fire Company, parked in the
street, some 60 feet away from the house.3 EMTs entered the residence, where the
Plaintiff was located in her second-floor bedroom. Finding a critically low heart
rate, the EMTs elected to remove her immediately to a hospital.4
The EMTs did not use a stretcher or other device in transporting the Plaintiff
from her room to the ambulance, but instead assisted her in walking.5 As they
ambulated to the ambulance, Plaintiff fell and suffered injuries.6
We had a previous “go” at Defendant’s motion to dismiss based on an
immunity claim, but, like ships passing in the night, the parties were in the same
ocean, but missed each other by several miles. The state and county tort claims acts
got tangled up in the briefing and so the Court invited them to go take some
1
Compl. ¶ 8.
2
Id. ¶ 8.
3
Id. ¶ 10.
4
Id. ¶ 9.
5
Id. ¶ 10.
6
Id. ¶ 11.
1
discovery and try again. They apparently elected to take no discovery but try again
anyway. Well, ok then.
Defendant’s motion, brought under Del. Super. Ct. R. 12(b)(1) is limited to
the question whether Hartly is immune from suit.7 It points the Court to the County
and Municipal Tort Claims Act (“CMTCA”),8 which immunizes volunteer fire
companies9 from suit.
Plaintiff has responded to the motion, agreeing that the CMTCA grants a
broader immunity than the state Tort Claims Act, but urging that only “discretionary”
acts are immune under the CMTCA and transporting a patient from her house to an
ambulance was not discretionary, but rather “ministerial.”10 Therefore, the argument
goes, the CMTCA does not apply.
ANALYSIS
At the risk of returning down the state/county tort claims rabbit hole, the Court
simply notes that the structure of the two statutes is different and presumptions as to
inclusion or exclusion should not be presumed from one to the other.
7
Def.’s Renewed Mot. to Dismiss Pl.’s Compl.
8
10 Del. C. §§ 4010-4013.
9
10 Del. C. § 4010(2).
10
Pl.’s Response to Def.’s Renewed Mot. to Dismiss.
2
The CMTCA, with which we are concerned here, states in blanket terms, that
“all governmental entities and their employees shall be immune from suit on any and
all tort claims seeking recovery of damages.”11 “Government entities” includes
volunteer fire companies.12 Thus, at least as far as the CMTCA is concerned, the
Defendant is immune, and waivers of the immunity are the exception.
Waivers of CMTCA immunity are indeed delineated and they are few.
Waivers involve:
1) ownership, maintenance or use of motor vehicles, special equipment, or
other machinery or equipment, whether mobile or stationary.
2) construction, operation, or maintenance of a public building, and
3) the sudden and accidental discharge of liquids or gases.13
1. The Only Waivers of Immunity Are Found In Section 4012; Section
4011(b) Does Not Confer Additional Waivers of Immunity.
The locus of concern for the parties here is not the waiver provision of section
4012 above, but rather the further grant of immunity that is articulated in section
4011(b). While section 4011(a) sets forth the broad immunity quoted above, section
4011(b) expands the immunity granted by section 4011(a). Under section 4011(b),
conduct is immune “notwithstanding §4012 of this title.” Conduct for which a
11
10 Del. C. § 4011(a).
12
10 Del. C. § 4010(2).
13
10 Del. C. § 4012.
3
waiver of immunity applies under section 4012 is reserved for immunity under
section 4011(b).
For example, legislative, judicial or “quasi” judicial acts are immune from
suit.14 Also immune is:
The performance or failure to exercise or perform a
discretionary function or duty, whether or not the
discretion be abused and whether or not the statute,
charter, ordinance, order, resolution, regulation or resolve
under which the discretionary function or duty is
performed is valid or invalid.15
So even if immunity is waived under section 4012, if the conduct involved a
discretionary function, it is immune from a suit for damages.
The defense would have the Court analyze the EMT’s decision whether to put
the Plaintiff on a stretcher or walk with her to the ambulance as an issue of
“discretionary function” vs. a “ministerial act.” The argument is that if it was a
ministerial act (and not discretionary), it is not immune from suit.
The case of Sadler v. New Castle County16 looms large in our analysis so it is
worth a careful look. Kenneth Sadler was a 20-year-old man who suffered a mishap
14
10 Del. C. § 4011(b)(1-2).
15
10 Del. C. § 4011(b)(3).
16
524 A.2d 18 (Del. Super. 1987), aff’d, 565 A.2d 917 (Del. 1989).
4
while attempting to walk across a waterfall on the Brandywine Creek.17 He fell into
the Creek, injuring his head and was rescued by his friends who resuscitated him and
went across the Creek for help.18 The Talleyville Fire Company came to assist and
immobilized Sadler on a backboard and cervical collar.19 Using their rescue
equipment, they then executed a fairly tricky maneuver to get him back across the
Creek and to a hospital.20
Unfortunately, Mr. Sadler was rendered a quadriplegic, the Plaintiff blaming
his treatment by the EMTs, the Defense blaming his incapacitation on the fall.21 In
order to defeat Talleyville Fire Company’s asserted defense of immunity under the
CMTCA, the Plaintiff argued that the equipment deployed by the emergency
personnel was “other machinery or equipment” for which immunity was waived
under the “motor vehicle” exception to immunity in section 4012(1).22
The Superior Court rejected Plaintiff’s argument that the rescue equipment
fell within the ambit of “other machinery or equipment” in the motor vehicle
17
Sadler, 524 A.2d at 21.
18
Id.19
Id.20
Id.21
Id.22
Id. at 24.
5
immunity waiver and granted summary judgment for Talleyville.23 Plaintiff
appealed.
The Delaware Supreme Court affirmed, but chose a different basis than the
definitions in the “motor vehicle” waiver of immunity found in section 4012.
Instead, the Court looked to section 4011(b)(3), which articulates “discretionary”
acts as immunized, regardless whether immunity is waived under section 4012.24
The Court said that “[w]hile it would appear that the most common application of
immunity to discretionary governmental functions involves policy decisions under
the police power, errors committed in the exercise or enforcement of activities
undertaken under the police power also enjoy protection.”25
Given that Sadler’s rescuers had to make choices in how to get Sadler out of
his predicament, the decision to bring him across the creek using their rescue
equipment certainly involved the exercise of discretion, so the decision is not notable
in that respect. But why did the Court choose this route and not the one chosen by
the Superior Court in construing the waiver of immunity provisions in section 4012?
23
Id.
24
Sadler, 565 A.2d at 922.
25
Id. at 921.
6
The Court explained that:
The application of section 4012(1) has proved troublesome
because of the general language—“or other machinery or
equipment”—that appears in the statute following a list of
designated items of municipal property that includes “any motor
vehicle, special mobile equipment, trailer, aircraft.” Because the
term “equipment,” in its broadest sense, may embrace an endless
variety of material items within the possession, ownership, or
control of a governmental entity, a literal application of the term
may seriously erode the Act's general grant of immunity and
result in the exception swallowing the rule.26
Thus, the Court’s concern was that prolonged litigation over “equipment” in
the immunity waiver provision might so expand the waiver of immunity as to render
it limitless. Clearly, the Court was concerned with expanding the waiver of
immunity. But in choosing to rule on the basis that the EMTs were exercising their
discretion, the Court opened the door to the argument raised by Plaintiff here: If the
act complained of is not “discretionary” – that is, it is “ministerial” – does that mean
it is not immune under the statute? The Supreme Court did not address the issue.
The interpretation pressed by Plaintiff, however, is inconsistent with the
structure of the immunity statutes. Section 4011(a) grants immunity in the broadest
terms possible: “all governmental entities and their employees shall be immune from
suit on any and all tort claims seeking recovery of damages.”27 Section 4012
26
Id. at 922-923.
27
10 Del. C. § 4011(a).
7
provides specific waivers of immunity. Section 4011(b) is not found among the
waiver provisions in section 4012. Rather, it is in the immunity grants found in
section 4011. Section 4011(a) provides a general, blanket grant of immunity to all
government activity. Section 4011(b) goes further by providing that even if
immunity is waived under section 4012, conduct within section 4011(b) is still
immune “notwithstanding §4012 of this title.” Indeed, the statute makes clear:
“[p]aragraphs (b)(1) to (6) of this section to which immunity applies are cited as
examples and shall not be interpreted to limit the general immunity provided by this
section.”28 We cannot read paragraphs (b)(1) to (6) to present an occasion to
wordsmith our way into additional waivers of immunity when this provision
admonishes us to do just the opposite.29
Subsection (b)(3) is there to make it explicit that discretionary acts are
immune.30 But it does not follow that the reverse – non-discretionary acts – are not
immune. Rather, waiver of immunity extends to only those acts found in section
4012. Section 4011(b) is not there to create a different class of waivers to immunity.
So, to use the subsection (b)(3) example again, if we do not have discretionary
behavior, we resort to the general principle of immunity for government conduct
28
10 Del. C. § 4011(b).
29
Id.
30
10 Del. C. § 4011(b)(3).
8
granted in section 4011(a).31 If it is not about cars, buildings, or fumes under section
4012, it does not matter whether the conduct was discretionary or ministerial.
2. Plaintiff’s Injuries Did Not Arise From Hartly’s Ownership,
Maintenance or Use of the Ambulance
The final argument Plaintiff makes to maintain this action is that the claim fits
within the immunity waiver provision of section 4012 because it arises from Hartly’s
“ownership, maintenance or use” of a motor vehicle.
In Sussex County v. Morris, a paranoid, schizophrenic, alcoholic was being
transported by a county constable in the constable’s personal vehicle.32 Because it
was not a police car, the passenger was able to unlock the door and throw himself
out of the moving vehicle and onto the roadway.33 He was injured and he sued
Sussex County, among others.34
31
Section 4011(b) might be criticized as a redundancy, since section 4011(a)
immunizes all government conduct except as waived in section 4012. But
subsection (b) goes further to provide that acts within its provisions are immune even
if immunity is waived under section 4012. So, for example, a legislative act under
subsection (b)(1) would be immune even if it concerned the construction, operation
or maintenance of a public building, for which immunity is waived under 10 Del. C.
§ 4012(2).
32
Sussex County Del. v. Morris, 610 A.2d 1354, 1356 (Del. 1992).
33
Id.34
Id.9
The County argued that the injuries did not result from anything wrong with
the car.35 The Supreme Court called that argument a misreading of the statute.36 The
Court said “The motor vehicle exception in Section 4012(1) applies when the vehicle
itself is the instrument of the harm. Here, it could not be more obvious that Morris'
injuries were a direct result of the improperly equipped automobile Blake used.”37
In this case, the injuries were not the result of an improperly equipped car, or
from the operation of the car, or maintenance of the car. Plaintiff tells us that the
EMTs “were walking Plaintiff toward the ambulance. When Plaintiff was within 15
feet of the ambulance, she suffered a syncope event due to her low heart rate, fell,
and fractured her hip.”38 The fact that she was on her way to a vehicle is not even
relevant to what Plaintiff claims was the negligent act: permitting her to walk instead
of putting her on a stretcher or wheelchair.
The Plaintiff references some case law from Personal Injury Protection
(“PIP”) lawsuits in which, for example a school bus passenger, approaching the bus,
was held to be covered by the bus company’s insurance because the bus driver gave
35
Id. at 1359.
36
Id. at 1360.
37
Id.
38
Pl.’s Response to Def.’s Renewed Mot. to Dismiss, ¶ 1.
10
the plaintiff directions that resulted in his getting hit by a car.39 The Buckley case,
cited by Plaintiff, was interpreting the bus company’s insurance policy, which
covered “Any person while occupying ... your car ...” and “Occupying means in, on,
entering, or exiting.”40
The difficulty with the analogy Plaintiff draws is that insurance and PIP
protection serve quite different purposes from the government’s interest in
controlling its liability for general torts. The CMTCA makes no effort to define
“occupying” an automobile. That is not the language being interpreted by the
Delaware Supreme Court in the Morris case. The Court finds Plaintiff’s argument
unpersuasive.
CONCLUSION
In view of the foregoing, Defendant’s Motion to Dismiss must be
GRANTED.
IT IS SO ORDERED.
/s/ Charles E. Butler
Charles E. Butler, Resident Judge
39
Buckley v. State Farm Mutual Automobile Insurance Company, 139 A.3d 845, 846-
47 (Del. Super. 2015).
40
Id. at 847.
11