IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

GRACE J. RISHELL, ) ) Plaintiff, ) ) v. ) C.A. No. N2 2C

- 08

- 058 CEB ) HARTLY VOLUNTEER FIRE ) COMPANY, a domestic corporation, ) ) Defendant. )

Submitted: December 5, 2023 Decided: January 3 1 , 202 4

MEMORANDUM OPINION Upon Consideration of Defendants ’ Renewed Motion to Dismiss,

GRANTED

Gary S. Nitsche Esquire, Caroline A. Kaminski , Esquire, Nitsche & Fredricks, LLC , Wilmington , Delaware. Attorney s for Plaintiff. Daniel A. Griffith, Esquire, Thomas Wallace, Esquire, Whiteford Taylor & Preston, LLP, Wilmington, Delaware. Attorney s 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 EMT s entered the residence, wh ere 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

T he 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 t he Court invite d 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 t he County and Municipal Tort Claims Act (“CMTCA”) , 8 which immunizes volunteer fire companies 9 from suit

. Plaintiff has responded to the motion, agreeing that the CMTCA grants a broader immunity than the state Tort Claims Act , but urg ing 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, th e 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 n ot 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 “Govern ment 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 O nly W

aivers of I mmunity A re F ound I n S ection 4012; S ection 4011(b) D oes N ot C onfer A dditional W aivers of I mmunity
.

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) exp ands 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).

F or example, le gislative , judicial or “quasi” judicial acts are immune from suit

. 14 A lso 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, ordin ance, 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.

T he 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

“ discretion ary function ” vs . a “ ministerial act. ” The argument is that if it was a
mini sterial act (and not discretionary ) , it is not immune from suit.

T he case of Sadler v. New Castle County 16 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 1 8 (Del. Super. 1987) , aff’d , 565 A.2d 917 (Del. 1989)

.5

while attempting to walk a cross 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 backb oard and cervical collar. 19 Us ing their rescue equipment , t hey 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 th e 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 affirm ed , 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 enj oy 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 resp ect. 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 th e 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 s wallowing 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 o f 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. S ection 4011(a) provides a general, blanket grant of immunity to all government activity

. S ection 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 interpr eted 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

Subsecti on (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 I njuries D id N ot A rise F rom Hartly’s Ownership, Maintenance or U se of the A mbulance 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 par anoid, 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 , 6 1 0 A.2d 1354, 1356 (Del. 1992). 33 Id. 34 Id.10

T he 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 stret cher or wheelchair

. The Plaintiff reference s some case law from Person al 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 g ave

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 T he Buckley case, cited by Plaintiff, was interpreting the bus company’s insurance policy, which covered “ A ny person while occupying

... your car
... ” and “Occupying means in, on, entering, or exiting.” 40 The difficulty with the analogy Plaintiff draw s is that ins urance 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 Delaw are Supreme Court in the Morris case. The Court finds Plaintiff’s argument unpersuasive.

CONCLUSION In view of the foregoing, Defendant’s M otion to D ismiss 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.