Fisher v. Emory Hill Real Estate Services, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
KIM L. FISHER, )
)
Plaintiff, )
)
v. ) C.A. No. N20C-07-029 EMD
)
EMORY HILL REAL ESTATE )
SERVICES, INC., et al., )
)
Defendants. )
MEMORANDUM OPINION GRANTING DEFENDANT STATE OF
DELAWARE’S MOTION FOR SUMMARY JUDGMENT
This is a civil action involving a personal injury claim. On January 20, 2021, Ms. Fisher
filed an amended complaint alleging that she sustained personal injuries because of a trip and fall
due to the negligence of Defendant Emory Hill Real Estate Services, Inc. (“Emory Hill”) and
Defendant State of Delaware (the “State”).1
The State filed its Motion for Summary Judgment, including all supporting affidavits and
documents (the “Motion”) on April 27, 2021.2 The State argued that it is entitled to judgment
because Ms. Fisher’s suit is barred by the doctrine of sovereign immunity. Ms. Fisher contested
the Motion and filed her Plaintiff’s Response to Defendant State of Delaware’s Motion for
Summary Judgment (the “Response”).3 The State then submitted its Defendant State of
Delaware’s Reply in Support of Its Motion for Summary Judgment (the “Reply”).4 The Court
held a hearing on the Motion, the Response and the Reply on the July 8, 2021.5 At the end of the
hearing, the Court ordered the State to provide additional discovery to Mr. Fisher.
1
D.I. No. 7 (“Am. Compl.”).
2
D.I. No. 16.
3
D.I. No. 17.
4
D.I. No. 24.
5
D.I. No. 25.
The State filed its Notice of Service of Defendant State of Delaware’s Response to
Interrogatories and Request for Production Resulting from July 8, 2021 Oral Argument.6 The
State also submitted the Verification of Debra Lawhead on July 20, 2021.7 The Court received
an e-mail from Katherine L. Hemming, Esq., to the Honorable Eric M. Davis on November 22,
2021.
The Court has considered the Motion, the Response, the Reply and the parties’ arguments
made at the July 8, 2021 hearing. In addition, the Court has reviewed the parties’ supplemental
submissions and the entire record of this civil action. For the reasons set forth below, the Court
GRANTS the Motion.
I. INTRODUCTION
On January 20, 2021, Ms. Fisher filed an amended complaint alleging that she sustained
personal injuries because of a trip and fall due to the negligence of Emory Hill and the State. On
February 16, 2021, Emory Hill filed an answer to the Amended Complaint, denying it was liable
for any damages suffered by Ms. Fisher.8 In addition, Emory Hill included a crossclaim against
the State if the Emory Hill is held liable to Ms. Fisher.9
In the Amended Complaint, Ms. Fisher argues that she suffered injuries from a fall due to
the negligence of Emory Hill and the State.10 Ms. Fisher claims that Emory Hill and the State
were negligent in that they (i) permitted defective mat to exist on the floor of their premises, (ii)
failed to properly and reasonably inspect the premises, (iii) failed to warn Ms. Fisher of the
existence of a defective mat on the floor of their premises, (iv) failed to make its premises safe
6
D.I. No. 26.
7
D.I. No. 26.
8
D.I. No. 9.
9
D.I. No. 9.
10
Am. Compl. ¶¶ 5,6.
2
and secure for business invitees such as Ms. Fisher; (v) failed to properly train their employees;
and (vi) were otherwise negligent as further discovery may demonstrate.11
On or about March 13, 2020, Ms. Fisher was a business invitee at the Pencader Department of
Labor in Newark, Delaware.12 Emory Hill, upon information and belief, is the owner and/or management
company of the property.13 The State, upon information and belief, leased the above-mentioned
property.14 While on the premises, Ms. Fisher allegedly slip and fell on a mat.15 As a result of the fall,
Ms. Fisher allegedly incurred medical expenses in the amount of $31,003.53 plus future expenses.16 Ms.
Fisher claims that the alleged fall was a result of the defendants’ negligence.17 Thus, Ms. Fisher demands
judgment against Emory Hill and the State, jointly and severally, for personal injuries, pain and suffering,
past and future medical expenses, interest pursuant to 6 Del. C. § 2301(d), and court costs.18
On March 18, 2021, the State filed an answer to the Amended Complaint, denying
liability for the claims asserted by Ms. Fisher.19 The State also filed a crossclaim against Emory
Hill and denied all allegations in Emory Hill’s crossclaims.20 Emory Hill then filed an answer to
the State’s crossclaims denying all present or future crossclaims that may be asserted.21
On April 27, 2021, the State filed the Motion, seeking relief under Superior Court Civil
Rule 56. The Motion is supported by the affidavit of Debra Lawhead (the “Lawhead Affidavit”).
Ms. Fisher then filed the Response. Finally, the State filed the Reply on June 4, 2021. The
Court held a hearing on the Motion on July 8, 2021. At the end of the hearing, the Court
instructed Delaware to provide certain discovery to Ms. Fisher. The discovery would
11
Am. Compl. ¶ 6.
12
Am. Compl. ¶ 4.
13
Id. ¶ 2 (this is a JD preference, not necessarily “proper Bluebook”).
14
Am. Compl. ¶ 3.
15
Am. Compl. ¶ 5.
16
Am. Compl. ¶ 8.
17
Am. Compl. ¶¶ 5,6.
18
Am. Compl. ¶ 8.
19
D.I. No. 11.
20
D.I. No. 11.
21
D.I. No. 13.
3
supplement the Lawhead Affidavit and provide Ms. Fisher with additional information on
insurance and waiver.
II. STANDARD OF REVIEW
The standard of review on a motion for summary judgment is well-settled. The Court’s
principal function when considering a motion for summary judgment is to examine the record to
determine whether genuine issues of material fact exist, “but not to decide such issues.”22
Summary judgment will be granted if, after viewing the record in a light most favorable to a
nonmoving party, no genuine issues of material fact exist and the moving party is entitled to
judgment as a matter of law.23 If, however, the record reveals that material facts are in dispute,
or if the factual record has not been developed thoroughly enough to allow the Court to apply the
law to the factual record, then summary judgment will not be granted.24 The moving party bears
the initial burden of demonstrating that the undisputed facts support his claims or defenses.25 If
the motion is properly supported, then the burden shifts to the non-moving party to demonstrate
that there are material issues of fact for the resolution by the ultimate fact-finder.26
III. DISCUSSION
The State argues that it is entitled to summary judgment because Ms. Fisher’s suit is
barred by the doctrine of sovereign immunity.27 Delaware contends that the Delaware
Constitution states that suits may be brought against the state “according to such regulations as
22
Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted); Oliver B. Cannon
& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. 1973).
23
Id.24
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962); see also Cook v. City of Harrington, 1990 WL 35244 at
*3 (Del. Super. Feb. 22, 1990) (citing Ebersole, 180 A.2d at 467) (“Summary judgment will not be granted under
any circumstances when the record indicates . . . that it is desirable to inquire more thoroughly into the facts in order
to clarify the application of law to the circumstances.”).
25
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970) (citing Ebersole, 180 A.2d at 470).
26
See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995).
27
Def. The State of Delaware’s Mot. for Summ. J.
4
shall be made by law.”28 Sovereign immunity may be waived by a clear and specific act by the
General Assembly.29 Title 18, Section 6511 specifies that sovereign immunity is waived to the
extent that either the State insurance coverage program was funded by direct appropriation (self-
insurance) or that the State purchased commercially available insurance to cover the loss.30 In
addition to overcoming sovereign immunity, the State must (1) waive immunity, and then (2) the
State Tort Claims Act (“STCA”) must not otherwise bar the action.31 Before the Court considers
the STCA, there must be a waiver of liability first.32
The State relies upon the Lawhead Affidavit and, after the hearing, its discovery
responses. Ms. Lawhead, as the Insurance Coverage Administrator of the State of Delaware,
frequently provides affidavits to demonstrate that the State is uninsured. The State commonly
presents similar affidavits and evidence to establish a lack of insurance and to show that the State
did not waive its sovereign immunity.
The Court often uses affidavits like the Lawhead Affidavit to conclude that the State did
not have insurance to cover a loss, and have granted summary judgment for the State on grounds
of sovereign immunity. Although the Court occasionally finds that the State waived sovereign
immunity when the State relies upon an affidavit,33 in those cases the affidavit admitted the
existence of insurance or a waiver. Here, the Lawhead Affidavit clearly states that there is no
insurance applicable to Ms. Fisher’s claim. The Court consistently considers sworn affirmations
28
Del. Const. art. I, § 9.
29
Turnbull v. Fink, 668 A.2d 1370, 1376–77 (Del. 1995) (citing Raughley v. Department of Health & Social
Services, Del. Super., 274 A.2d 702 (1971).
30
Zak v. GPM Investments, LLC, 2013 WL 1859344, at *2 (Del. Super. Apr. 30, 2013) (citing Pauley v.
Reinoehl, 848 A.2d 569, 573 (Del. 2004).
31
McCafferty v. Delaware Dep't of Transp., 2013 WL 6114832, at *5 (Del. Super. Nov. 19, 2013) (citing Barnes, 33
A.3d at 913)
32
Id.
33
See, e.g., Zak, 2013 WL 1859344, at *2.
5
like this to find that the State has not waived its sovereign immunity under 18 Del. C. § 6511.34
In addition, the State provided discovery responses to Ms. Fisher that supported the Lawhead
Affidavit.
IV. CONCLUSION
While the Court may have found in unique circumstances that sovereign immunity had
been waived when Delaware has solely relied upon an affidavit, the instant case is not one of
those instances. The Court finds that the Lawhead Affidavit and additional discovery
demonstrate that the State (i) did not have insurance applicable to Ms. Fisher’s claim, and (ii) did
not waive its sovereign immunity.35 The Court will, therefore, GRANT the Motion and enter
summary judgment in favor of Delaware.
IT IS HEREBY ORDERED.
Dated: February 22, 2022
Wilmington, Delaware
/s/ Eric M. Davis
Eric M. Davis, Judge
cc: File&ServeXpress
34
Caraballo v. Delaware Dep't of Corr., 2001 WL 312453, at *1 (Del. Super. Mar. 22, 2001).
35
Ms. Fisher conceded as much in the November 22, 2021 e-mail to the Court.
6