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.
1

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.
2

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 

companies9from 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.
3

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.
4

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).
5

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.
6

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.
7

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).
8

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).
9

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.
10

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.
11

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.