IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

LESLIE KESTING, ) ) Plaintiff, ) )

v. ) C.A. No. N14C

- 07

- 095 ALR )

RIVER ROAD SWIMMING CLUB ) d/b/a RIVER ROAD SWIM CLUB, )

RIVER TERRACE ) COOPERATIVE, INC., UNITED ) WATER DELAWARE, INC., CITY ) OF WILMINGTON, DELAWARE, ) NEW CASTLE COUNTY, ) DELAWARE, STATE OF ) DELAWARE, and PROGRESSIVE ) POOL MANAGEMENT, INC., ) )

Defendants. )

Submitted: December 12, 2014

Decided: December 15, 2014

Upon Defendant State of Delaware’s Motion for Summary Judgment

GRANTED

Plaintiff Leslie Kesting alleges that on August 31, 2012, she slipped and fell

into an “open manhole” (“Manhole”) at the intersection of Haines Road and River

Road, New Castle County, Delaware. Defendant State of Delaware filed a motion2 for summary judgment pursuant to Rule 56

. 1 Plaintiff opposes the State’s motion.

The Court heard oral argument.

Summary judgment may only be granted where there are no genuine issues

of material fact and the moving party is entitled to judgment as a matter of law. 2

The Court must view the evide nce in the light most favorable to the non

- moving

party. 3 If a material fact is in dispute or if it seems desirable to inquire more

thoroughly into the facts in order to clarify the application of the law, summary

judgment is inappropriate. 4 The moving p arty bears the burden of establishing the

non

- existence of material issues of fact. 5

The Delaware Constitution prohibits citizens from suing the State unless

otherwise permitted under state or federal law. 6 The State statutorily waives its

sovereign immunity under 18 Del. C. § 6511 “as to any risk or loss covered by the

state insurance coverage program, whether same be covered by commercially

procured insurance or by self

- insurance . . . . ” In Pajewski v. Perry

, 7 the Delaware

Supreme Court held that it is insufficient for the State to invoke immunity under §

6511 “merely by showing

. . . that there is neither commercial nor self

- insurance

1 Super. Ct. Civ. R. 56

. 2 Super. Ct. Civ. R. 56 (c); Windom v. Ungerer , 903 A.2d 276, 280 (Del. 2006).

3 Rizzitiello v. McDonald’s Corp. , 868 A.2d 825, 829 (Del. 2005).

4 Grasso v. First USA Bank , 713 A.2d 304, 307 (Del. Super. 1998).

5 Moore v. Sizemore , 405 A.2d 679, 680 (Del. 1979).

6 See Del. Const. art. I, § 9; Dep’t of Cmty. Affairs & Econ. Dev. v. M. Davis & Sons , 412 A.2d 939, 941 (Del. 1980); Janowski v. Div. of State Police , 981 A.2d 1166, 1169 (Del. 2009).

7 363 A.2d 429, (Del. 1976).3 covering the liability for the kind of tortious conduct alleged in th e complaint.” 8

The Supreme Court held that it is “incumbent upon the State to provide all of the

facts as to how the Committee met its responsibilities

. . . . ” 9

The Delaware Supreme Court has clarified its holding in Pajewski through

two similar cases. In Doe v. Cates

, 10 the Supreme Court provided an exhaustive

examination of the State Insurance program and its relationship to waiver of

sovereign immunity. 11 In Pauley v. Reinoehl 12 , the Supreme Court crystallized a

more passive judiciary role in determinin g waiver under § 6511:

The doctrine of sovereign immunity is not judicially created nor can it be abolished or modified by judicial opinion. When, where, under what circumstances, and to what degree the State purchases commercial insurance to cover a

risk , acts to self

- insure or to remove any cap on the State's exposure to damages, is entirely a matter for the General Assembly. 13

Th e State has carried the burden required for granting summary judgment on

the ground that it has not waived its sovereign immunity under § 6511 because its

insurance program does not provide coverage against the type of risk alleged in

Plaintiff’s complaint. The affidavit of State Coverage Administrator Debr a

Lawhead confirms that the St ate has neither purchased commercial insurance nor

8 Id. at 436.

9 Pajewski v. Perry , 363 A.2d 429, 436 (Del. 1976).

10 499 A.2d 1175, (Del. 1985).

11 Id. at 1178

- 79.

12 848 A.2d 569, (Del. 2004).

13 Pauley v. Reinoehl. 848 A.2d 569, 576 (Del. 2004).4 established a self

- insurance program that would be applicable under the

circumstance. Pl aintiff’s argument that the State must affirmatively show a reason

for lack of insurance coverage is contrary to the Supreme Court’s holdings in Cates

and Pauley

.

The Court rejects Plaintiff’s reliance upon Furman v. DelDOT 14 in which the

Delaware Supreme Court reversed the grant of summary judgment to the State by

the Superior Court. The Delaware Supreme Court ruled that the trial court should

have given the plaintiff an opportunity to respond to matters outside the pleadings

when a motion to dismiss was converted to a motion for summary judgment. In

the case before this Court, on the other hand, Plaintiff has had th e opportunity to

present factual material relevant to the motion for summary judgment, and Plaintiff

concedes that she has no basis in fact or law to claim that the State had procured

insurance contrary to the sworn statement provided by the State. Accordi ngly,

Furman is not applicable here.

W hen the State ’s motion is viewed in a light most favorable to Plaintiff,

there are no genuine issues of material fact. The State is entitled to judgm ent as a

matter of law and its m otion for summary j udgment must be granted.

14 30 A.3d 771 (Del. 2011).5 NOW, THEREFORE, this 15 th day of December, 2014 , Defendant State

of Delaware ’s Motion for Summary Judgment is hereby GRANT ED.

IT IS SO ORDERED

.



# Andrea L. Rocanelli

_______________________________ The Honorable Andrea L. Rocanelli