Garrity v. City of Dover, Delaware.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
FLORENCE M. GARRITY, )
)
Plaintiff, )
) C.A. No. N14C-08-192 CLS
v. )
)
CITY OF DOVER, )
DELAWARE, )
Defendant. )
)
)
)
)
)
)
ORDER
On this 12th Day of November, 2015 and upon Defendant City of Dover,
Delaware’s (“Defendant”) Motion for Summary Judgment, the Court finds as
follows:
Plaintiff Florence Garrity (“Plaintiff”) filed this action against Defendant
arising out of her alleged trip and fall on a sidewalk at 45 South State Street in
Dover, Delaware. On March 12, 2015, Defendant moved for summary judgment,
arguing that it is immune from liability under the County and Municipal Tort
Claims Act. 1 Defendant asserts that personal injuries arising out of alleged defects
1
10 Del. C. § 4010.
in sidewalks and crosswalks are barred by the Act. 2 Moreover, Defendant argues
that the exception to this rule, under 10 Del. C. § 4012(2) is not applicable in this
case because the sidewalk on which Plaintiff allegedly tripped was not appurtenant
to a public building. Plaintiff opposed Defendant’s motion because discovery is
ongoing, and as such, there is still a genuine issue of material fact as to whether the
sidewalk on which she tripped was appurtenant to a public building.
Summary judgment is appropriate only when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to summary judgment as a matter of law.” 3 Summary judgment
should be denied “if it seems desirable to inquire more thoroughly into the facts or
to clarify the application of the law.” 4 If there is no applicable scheduling order in
place setting forth a discovery deadline or if discovery is ongoing, a motion for
summary judgment will likely be found premature. 5
Defendant’s motion is premature because discovery has yet to be completed
and there is a genuine issue of fact as to whether the sidewalk on which Plaintiff
2
See 10 Del. C. § 4011(b)(6).
3
Super. Ct. R. 56; Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
4
Christiana Marine Serv. Corp. v. Texaco Fuel & Marine Mktg., 2002 WL 1335360, at
*2 (Del. Super. June 13, 2002).
5
See e.g., Rivera v. Diamond State Port Corp., 2006 WL 1515829, at *1 (Del. Super. Apr. 6,
2006).
2
allegedly tripped was appurtenant to a public building. Accordingly, Defendant’s
motion for summary judgment is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.
/s/Calvin L. Scott
Judge Calvin L. Scott, Jr.
3