WILLFULL AND WANTON MISCONDUCT

15. The Defendants actions were reckless and amounted to willful
and wanton misconduct in that such actions completely ignored the
safety, health and welfare of all apartment residents, visitors and
invitees. As such, Plaintiffs are entitled to punitive damages.

16. As a proximate result of the negligent, reckless, careless and
willfully wanton actions of the Defendants, the Plaintiffs have
suffered and will continue to suffer:

(a) The wrongful death of Carl Timothy Dunfee;

(b) Extreme sorrow for the loss of a son and brother;

(c) Conscious pain and suffering;

(d) Fear of impending death;

(e) Emotional, mental pain and anguish;

(f) Loss of enjoyment of life;

(g) Reasonable funeral expenses;

(h) Loss of contribution of support;

(i) Loss of household services;

(j) Loss of the expectation of pecuniary benefits;

(k) Loss of companionship for the Decedent’s brother,

(1) Loss of companionship for the Decedent’s mother,

(m) Edward Dunfee and mother Rosemary Donohue, must
suffer and live the rest of their lives without their beloved
brother and son who they either talked to, or spent time with,
every day.

WHEREFORE, Plaintiffs demand judgment against the
Defendants, jointly and severally, for conscious pain and suffering,
mental and emotional anguish, fear of impending death, loss of
enjoyment of life, mental and physical pain, wrongful death, loss
of expectation of pecuniary benefits, loss of contribution of
support, funeral expenses, loss of companionship, punitive
damages, interest and Court costs.

On June 30, Defendants filed this motion to dismiss. At oral argument,
Plaintiffs made a series of concessions. First, Plaintiffs conceded that they are not
pursuing a survival action under § 3701. In doing so, Plaintiffs counsel stated:
“We filed this as a wrongful-death complaint, not as a survival action; we are not

members of the estate, we do not act on behalf of the estate. . .

4 PL.’s Compl. §f 8-16.

5S

Second,

5 Dunfee et al. v. KGL Holdings Riverfront, LLC, et al., C.A. No. N16C-06-019 RRC, at 31 (Del.

Super. Aug. 30, 2016) (TRANSCRIPT) [hereinafter Oral Arg. Tr.].
5


mental anguish under § 3724(d)(5).> Accordingly, in light of the statutory
language and the interpretation of it by the District Court in Casero, a spouse,
children, and persons to whom the decedent stood in loco parentis have the
exclusive right to recover damages for their mental anguish if such persons exist.”

3 Td. at *3-4,
24 Tn a case where a statute was found ambiguous, the Delaware Supreme Court held:

A synopsis is a proper source for ascertaining legislative intent.

But, as with other sources of the legislative history, the Court may

only look to the synopsis if the Court finds that the statutory

language is ambiguous and requires interpretation. It is well

established that “[a] statutory synopsis cannot change the meaning

of an unambiguous statute.”
Bad. of Adjustment v. Verleysen, 36 A.3d 326, 332 (Del. 2012). This Court finds no ambiguity in
the statute. But assuming arguendo that there is some ambiguity in § 3724(d)(5), the General
Assembly’s intent behind the 1999 amendment to the wrongful death statute also supports the
Court’s interpretation. The amendment added siblings to the list of individuals who may recover
damages for mental anguish. The 1999 amendment to this bill was enacted in light of the murder
of Anne Marie Fahey, who had “no spouse, parents, or children when she died, only brothers and
asister. Thus, [under the previous version of § 3724,] they are barred from suing the responsible
party for their mental anguish.” H.R. 15, 140th Gen. Assem. (Del. 1999) (Synopsis). Further,
the Synopsis provides:

Under Delaware’s current wrongful death statute, only the

surviving spouse, children and parents (if there is no surviving

spouse or children) may bring a civil action for their mental

anguish due to the death of their loved one. This bill would correct

an unintended consequence of the 1982 law, which leaves the

family of an unmarried, childless victim whose parents are

deceased no remedy for their suffering damages.
H.R. 15, 140th Gen. Assem. (Del. 1999). The General Assembly’s evident intent behind the
amendment is supportive of this Court’s interpretation of the statute, as it conveys the General
Assembly’s desire that parents and siblings only recover if no child or spouse exists.

Moreover, it would be illogical to require that a decedent stand in loco parentis to his
own children, as Plaintiffs contend the statute mandates. The term “in /oco parentis” means that
a person “puts himself in the situation of a lawful parent by assuming obligations incident to the
parental relation without going through the formalities necessary to a legal adoption.” Lisowski
v, Bayhealth Medical Center, Inc., 142 A.3d 518, 524 (Del. Super. 2016) (citing Trievel v. Sabo,
1996 WL 944981, at *6 (Del. Super. Mar. 13, 2016)); see also Chambers v. Chambers, 2002 WL
1940145, at *2 n.3 (Del. Fam. Feb. 5, 2002) (discussing that “parent” can be defined as “a person
standing in loco parentis although not a natural parent,” supporting the position that a person
standing in loco parentis is not the natural parent of the child). For example, an adult who has
custody of a foster child can stand in Joco parentis to the child, as the adult is not the child’s
biological or adoptive parent, but the adult still acts as a de facto parent to the child.
Accordingly, the biological or adoptive parent of another could not “place himself in the
situation of a lawful parent . . . without going through the formalities necessary to a legal

10


allege that they suffered mental anguish as a result of Decedent’s death, must be
dismissed on grounds that Plaintiffs do not have standing to make such a claim
under § 3724(d)(5). Second, Defendants contend that Plaintiffs have not
sufficiently pleaded a legal basis under § 3724(d)(1-4) to recover the itemized
damages set forth therein. In the alternative, Defendants concede that should this
Court deny their Motion to Dismiss, this action should be consolidated with the
action brought by Samantha and Christina.

B. Plaintiffs’ Contentions

In light of Plaintiffs’ concessions at oral argument, Plaintiffs make two
contentions in response to Defendants’ motion that the Court will consider. First,
Plaintiffs contend that the phrase “children and persons to whom the decedent
stood in loco parentis at the time of the injury which caused the death of the
deceased” requires the decedent to stand in loco parentis to his adult children (who
have brought the separate action) in order to bar Plaintiffs’ recovery. Second,
Plaintiffs contend that in order for Decedent’s daughters to recover under §
3724(d)(5), thereby barring Plaintiffs’ claims, a factual inquiry is required to
determine whether Decedent stood in /oco parentis to his adult daughters, and that
discovery is required to determine whether Plaintiffs have a viable claim under §
3724(d)(1-2).!' Finally, Plaintiffs contend that rather than dismiss their Complaint,
the Court should consolidate their action with Samantha and Christina Dunfee’s
action.

'© Defendants originally contended, and Plaintiffs then conceded, that Plaintiffs’ claims pertain to
a survival action, and that a survival action may be brought only by the estate of the decedent
under 10 Del. C. § 3701. Plaintiffs also withdrew any claim for punitive damages as part of their
wrongful death claim.

"| This response to Defendant’s contention was presented for the first time to the Court at oral
argument on the motion. Plaintiffs did not make such an argument in their Response to
Defendants’ Motion to Dismiss.


Plaintiffs acknowledged that they are not pursuing damages under § 3724(d)(3-4).°
Finally, Plaintiffs advised that they had no arguable position for punitive damages
and abandoned that claim.’ Accordingly, as Plaintiffs stated at oral argument, the
only claims for wrongful death damages they continue to pursue are:

(a) The wrongful death of Car] Timothy Dunfee;
(b) Extreme sorrow for the loss of a sun and brother;

(e) Emotional, mental pain and anguish;

(h) Loss of contribution of support;

(i) Loss of household services;

(j) Loss of the expectation of pecuniary benefits;

(k) Loss of companionship for the Decedent’s brother,
(1) Loss of companionship for the Decedent’s mother,
(m) Edward Dunfee and mother Rosemary Donohue,
must suffer and live the rest of their lives without their
beloved brother and son who they either talked to, or
spent time with, every day.*

II. PARTIES’ CONTENTIONS
A. Defendants’ Contentions?

Defendants contend that Plaintiffs’ action against them must be dismissed.'”
First, Defendants contend that Plaintiffs’ wrongful death claim, in which they

6 Oral Arg. Tr. at 38. Section 3724(d)(3) provides recoverable damages for “Loss of parental,
marital and household services, including the reasonable cost of providing for the care of minor
children.” Plaintiffs acknowledged at oral argument that there is no basis for recovery under this
subparagraph. Section 3724(d)(4) provides recoverable damages for “Reasonable funeral
expenses not to exceed $7,000 or the amount designated in § 5546(a) of Title 29, whichever is
greater.” At oral argument, counsel for Samantha and Christina Dunfee represented to the Court
that the funeral expenses would be paid for by Decedent’s estate. Oral Arg. Tr. at 36. Plaintiffs’
counsel accepted this representation and abandoned any claim for funeral expenses. Oral Arg.
Tr. at 38.

7 Oral Arg. Tr. at 30.

5 Compl. ¥ 16.

° Samantha and Christina Dunfee wrote the court a letter dated August 22, 2016, advising that
they joined in Defendants’ Motion to Dismiss the Complaint. Letter from Gary S. Nitsche, Esq.,
Counsel for Plaintiffs, Docket No. 59454235, Samantha A. Dunfee et al. v. KGL Holdings
Riverfront, LLC et al., C.A. No. N16C-04-108 RRC (Del. Super. Aug. 22, 2016).

6


stood in loco parentis), and siblings (if there is no surviving
spouse, children, persons to whom the deceased stood in loco
parentis at the time of the injury, parents or persons standing
in loco parentis to the deceased at the time of the injury which
caused the death of the deceased).'°

In interpreting a statute, the United States Supreme Court has applied the
“last antecedent rule,” which instructs that “a limiting clause or phrase . . . should
ordinarily be read as modifying only the noun or phrase that it immediately
follows.”!’ Although the last antecedent rule “is not an absolute and can assuredly
be overcome by other indicia of meaning,” it is still applicable in the case at bar.'®
Delaware also recognizes this rule as a means of statutory construction if the
application of the rule “does not alter the > plain common sense meaning of the
statute or result in statutory inconsistencies.”

Applying the plain meaning of the statutory language in conjunction with the
last antecedent rule, it is apparent that the adjectival phrase starting “to whom the
deceased stood in loco parentis” applies only to the noun “persons,” and not to the
noun “children.” The General Assembly intended for the decedent’s spouse,
children, and other individuals to whom the decedent acted as a parent (e.g., foster
children) to have the exclusive right to recover damages for mental anguish if they
exist.” It is only in the absence of those people when a parent or person who stood
in loco parentis to the decedent can recover for mental anguish. Further, a sibling
can only recover for their mental anguish when none of the previously identified
people exist.

This interpretation was applied by the United States District Court for the
District of Delaware in Casero v. Lambert."' In Casero, the decedent’s parents and
sister brought a claim for mental anguish resulting from the death of the
decedent.” However, as here, the District Court found that because the decedent
had a living spouse, the parents and sister were barred from making a claim for

'6 10 Del. C. § 3724(d)(5).

"7 United States v. Hayes, 555 U.S. 415, 425 (2009).

'8 Id at 416,

'9 Matter of Surcharge Classification 0133 By Delaware Compensation Rating Bureau, Inc., 655
A.2d 295, 303 n.9 (Del. Super. 1994).

20 HER. 15, 140th Gen. Assem. (Del. 1999).

219005 WL 735552 (D. Del. Mar. 30, 2005).

2 Id. at *1.


SUPERIOR COURT
OF THE

STATE OF DELAWARE

RICHARD R. CoocH NEW CASTLE COUNTY COURTHOUSE
RESIDENT JUDGE 500 NORTH KING STREET, SUITE 10400
WILMINGTON, DELAWARE 19601-3733

TELEPHONE (302) 255-0664

Timothy A. Dillon, Esquire

McCann & Wall LLC

300 Delaware Avenue, Suite 805

Wilmington, Delaware 19801

Attorney for Plaintiffs Edward Dunfee and Rosemary Donohue

Gary S. Nitsche, Esquire

Weik, Nitsche & Dougherty

305 North Union Street

Wilmington, Delaware 19805

Attorney for Plaintiffs Samantha Dunfee and Christina Dunfee

Mary E. Sherlock, Esquire

Weber Gallagher Simpson Stapleton Fires & Newby LLP
19 South State Street, Suite 100

Dover, Delaware 19901

Attorney for Defendants

Re: Edward Dunfee and Rosemary Donohue v. KGL Holdings
Riverfront, LLC d/b/a/ Evergreen Apartments at
Riverfront Heights, a Delaware Limited Liability Company,
Evergreen Properties Management, Inc., a Delaware
Corporation, and Evergreen Apartment Group, Inc., a

Delaware Corporation
C.A. No. N16C-06-019 RRC

Submitted: August 30, 2016
Decided: November 23, 2016

On Defendants’ Motion to Dismiss Plaintiffs’ Complaint. GRANTED.

On Plaintiffs’ Motion to Consolidate. DENIED AS MOOT.


D. Consolidation

Plaintiffs contend that their action should be combined with Samantha and
Christina Dunfee’s action under 10 Del. C. § 3274(e). As the Court holds that
Plaintiffs’ Complaint must be dismissed, Plaintiffs’ contention that their action
should be consolidated with Samantha and Christina Dunfee’s action is moot.

IV. CONCLUSION

Therefore, Defendants’ Motion to Dismiss Plaintiffs’ Complaint is
GRANTED.

Plaintiff's Motion to Consolidate is DENIED AS MOOT.

Very truly yours,

peta @. veh,

ce: Prothonotary (also N16C-04-108 RRC)

12


In the case at bar, Samantha and Christina Dunfee are Decedent’s children.
Under the interpretation of § 3724(d)(5) set forth above, their existence as
Decedent’s children bars Plaintiffs’ recovery as the sibling and mother of
Decedent. Similar to Casero, in which the decedent had a living spouse at the time
of her death, Decedent in the case at bar has two living children who could make a
claim for mental anguish. The exclusive right to recover damages for mental
anguish in this case therefore lies with Decedent’s children, Samantha and
Christina Dunfee. Accordingly, Defendants’ Motion to Dismiss Plaintiffs’
complaint with respect to the claim for damages for mental anguish must be
granted,”° In light of this finding, Plaintiffs’ contention that a factual inquiry is
needed to determine whether Decedent stood in /oco parentis to his adult daughters
is without merit.

adoption,” as a person is already the lawful parent of his or her own biological or adoptive
children.

25 This finding dismisses Plaintiffs’ claims for damages in subsections (a), (b), (€), (1), and (m) of
Paragraph 18 of their Complaint.

Plaintiffs’ remaining claims must also be dismissed. The Court first heard Plaintiffs’
opposition to Defendants’ Motion to Dismiss regarding the damages under § 3724(d)(1-2) at oral
argument on the motion. No responsive argument was made in Plaintiffs’ Response. Courts have
previously dismissed complaints when a plaintiff fails to respond to a motion to dismiss. In
Boulden y. Albiorix, Inc., a plaintiff did not respond directly to an argument posed in the
defendant’s motion to dismiss. Boulden v. Albiorix, Inc., 2013 WL 396254, at *5 (Del. Ch. Jan.
31, 2013). In light of the lack of response, the Delaware Court of Chancery found that “it appears
as if he has conceded that argument.” Jd. In Hollister v. United States Postal Service, the Third
Circuit held that a plaintiff's failure to respond to the defendant’s motion to dismiss indicates
that the motion was unopposed. 142 Fed.Appx. 576, 578 (3d Cir. 2005). Further, in Sisk v.
Sussex County, the United States District Court for the District of Delaware considered a
plaintiff's failure to respond to a motion to dismiss, stating: “the opposing party is negatively
impacted, as it . . . has therefore been forced to expend time and energy to respond to a
Complaint that has effectively been abandoned.” 2013 WL 240606, at *5 (D. Del. Jan. 22, 2013).

In the case at bar, it is clear that Plaintiffs have not abandoned the entirety of their
complaint. However, Plaintiffs’ failure to respond to Defendants’ Motion to Dismiss regarding
damages under § 3724(d)(1-2) provides some indicia that the claims for loss of pecuniary
benefits and support were abandoned. In responding to the § 3724(d)(5) claim and not others,
Plaintiffs likely made a decision to pursue the claim that they thought was most meritorious. As
the Court of Chancery found in Boulden, it appears that Plaintiffs have conceded the argument
that they are not entitled to damages under § 3724(d)(1-2). Accordingly, in light of Plaintiffs’
failure to respond to Defendants’ claim regarding the loss of pecuniary benefits and support, that
part of Defendants’ motion is considered unopposed, and Plaintiffs’ Complaint with respect to
those damages is dismissed. This finding dismisses the claims for damages in the remaining
subparagraphs, (h)-(k), of paragraph 18 of Plaintiffs’ Complaint, thereby dismissing the
Complaint in foto.

11


III. DISCUSSION
A. Standard of Review

When deciding a motion to dismiss, the Court accepts as true all well-
pleaded factual allegations made in the complaint.’ “Dismissal under Superior
Court Rule 12(b)(6) is appropriate only where it appears with reasonable certainty
that [the plaintiff] would be unable to prevail on any set of facts inferable from the
complaint”? Where allegations are merely conclusory, however, (i.e., without
specific allegations of fact to support them) they may be deemed insufficient to
withstand a motion to dismiss."

B. The Existence of Decedent’s Adult Daughters Bars Plaintiffs’ Claim for
Damages Resulting from Mental Anguish Under § 3724

When interpreting the language of a statute, Delaware law requires that “Tijn
the absence of any ambiguity, a court must be guided by the plain meaning of the
statutory language.”'* Section 3724(d)(5) provides:

(d) In fixing the amount of damages to be awarded under this
subchapter, the court or jury shall consider all the facts and
circumstances and from them fix the award at such sum as will
fairly compensate for the injury resulting from the death. In
determining the amount of the award the court or jury may
consider the following:

(5) Mental anguish resulting from such death to the surviving
spouse and next-of-kin of such deceased person. However,
when mental anguish is claimed as a measure of damages
under this subchapter, such claim for mental anguish will be
applicable only to the surviving spouse, children and persons to
whom the deceased stood in Joco parentis at the time of the
injury which caused the death of the deceased, parents and
persons standing in /oco parentis to the deceased at the time of
the injury which caused the death of the deceased (if there is no
surviving spouse, children or persons to whom the deceased

'2 Johnson vy. Taylor, 2007 WL 2083634, at *1 (Del. Super. July 19, 2007).
A Lord v. Souder, 748 A.2d 393, 398 (Del. 2000).

Id.
'S Priest vy, State, 879 A.2d 575, 584 (Del. 2005).

8


another complex resident who lived below the apartment where
Carl Timothy Dunfee was staying.

NEGLIGENCE
12. Defendants were negligent in that they:

(a) Failed to properly and reasonably train and supervise their
employees;

(b) Failed to properly supervise and manage their own workers
and/or third party vendors who they hired to work on and
maintain the boiler and piping systems of Building G.

(c) Failed to properly and reasonably warn the residents,
occupants and visitors of Building G.

(d) Violated Property Maintenance Code for New Castle
County, Sec. 603.1, in that Defendants did not keep all
mechanical appliances, boilers and piping systems in working
order.

(e) Violated New Castle County, Sec. 603.4, in that Defendants
failed to maintain proper safety controls for all mechanical
appliances, boilers and piping systems at their apartment
complex.

(f) Violated New Castle County, Sec. 603.5, in not having a
proper ventilation system so that carbon monoxide and other
toxic gasses and substances would not poison or kill apartment
residents, visitors and invitees.

(g) Failed to properly and reasonably inspect the boiler system
and piping systems to determine potential hazards to residents,
visitors and invitees to the apartment complex.

(h) Failed to provide and utilize carbon monoxide detectors or
a detection system to prevent carbon monoxide poisoning of
residents, occupants and visitors.

(i) Failed to properly and timely complete maintenance of the
apartment complex and the boiler and pipe systems of Building
G.

(j) Failed to properly and timely fix all issues identified with
the boiler and piping system of Building G so that poisonous
gasses from the boiler system did not cause injury or kill
residents, visitors and invitees.

RESPONDEAT SUPERIOR

14. Each of the aforementioned acts of negligence and recklessness
of the Defendants, their agents, hired 3rd party contractors or
employees, are attributable to the Defendants by reason of the
doctrine of Respondeat Superior.


children of Decedent, filed a wrongful death claim against Defendants pursuant to
10 Del. C. § 37243

Then, on June 2, 2016, the instant Plaintiffs filed a complaint against the
Defendants, alleging inter alia:

8. On or about March 25, 2016, Carl Timothy Dunfee and his
girlfriend were visiting and spending the night with another friend,
Andrew Spanakos, at Building G, Apartment 10 at the
EVERGREEN APARTMENTS at RIVERFRONT HEIGHTS.
Defendants owned and managed this apartment complex. Carl
Timothy Dunfee was the beloved son of Plaintiff ROSEMARY
DONOHUE and the best friend and brother of Plaintiff EDWARD
DUNFEE.

9. While visiting and spending the night at his friend’s apartment,
Carl Timothy Dunfee was exposed to lethal amounts of carbon
monoxide gas which poisoned him and caused him to suffer
conscious pain and suffering and fear. The exposure to this carbon
monoxide gas at such high levels directly caused the tragic death
of Carl Timothy Dunfee.

10. Carl Timothy Dunfee’s death was a direct result of Defendants’
recklessly and carelessly failing to properly inspect, maintain and
fix the boiler system and gas pipes in Building G of the
EVERGREEN APARTMENTS at RIVERFRONT HEIGHTS.

11. As a result of Defendants’ reckless and careless failure to
properly inspect, maintain and fix the boiler system and gas pipes
in Building G of the EVERGREEN APARTMENTS at
RIVERFRONT HEIGHTS, these pipes and the boiler system were
in a degraded, corroded and non-working state which directly led
to the discharge of poisonous carbon monoxide gas and other toxic
substances/gasses, into the apartment where Carl Timothy Dunfee
and his friends were staying. This then directly led to the tragic
deaths of Carl Timothy Dunfee, his girlfriend, his friend and

3 Although Samantha and Christina do not specifically cite § 3724 in their complaint, the
complaint specifically states: “Plaintiffs have suffered or will suffer damages which include, but
not limited to, damages under Delaware law for a survival action and for wrongful death action
pursuant to 10 Del. C. §3704.” Compl. § 17, Samantha A. Dunfee et al. v. KGL Holdings
Riverfront, LLC, C.A. No. N16C-04-108 RRC (Del. Super. Apr. 14, 2016) (emphasis added).
Accordingly, it appears that Samantha and Christine Dunfee are pursuing claims under both §
3701 and § 3724.


Dear Counsel:

Defendants move to dismiss Plaintiffs’ Complaint against them. In
Plaintiffs’ Complaint, Plaintiffs allege that Defendants negligently caused the
death of Edward Dunfee’s brother and Rosemary Donohue’s son, Carl Dunfee. In
considering Defendants’ Motion to Dismiss, the Court is called upon to determine
two issues of law. First, the Court must determine whether a parent and sibling are
excluded from recovery for mental anguish in a wrongful death action under 10
Del. C. § 3724(d)(5) when the decedent’s children are living. Second, the Court
must determine whether § 3724(d)(5) requires a factual investigation to determine
whether the decedent stood in loco parentis to his adult daughters who have
brought a separate wrongful death and survival action. The two issues are of
apparent first impression before this Court.

The Court finds that, under the wrongful death statute, when a decedent’s
children exist, parents and siblings do not have standing to pursue a wrongful death
claim under § 3724(d)(5). Additionally, in accordance with the Court’s
interpretation of § 3724(d)(5), no factual inquiry is necessary to determine whether
the decedent stood in loco parentis to his adult daughters. Accordingly,
Defendants’ Motion to Dismiss is GRANTED.

I. FACTS AND PROCEDURAL HISTORY

Plaintiffs allege that on March 25, 2016, their brother and son Carl Dunfee
(“Decedent”), age 60, died as a result of exposure to carbon monoxide gas that was
released when a pipe burst in the boiler room of the Evergreen Apartments at
Riverfront Heights in New Castle County. Plaintiffs allege that Defendants
negligently maintained the pipe in the boiler room, and that Defendants’
negligence caused the death of Decedent.

On April 14, 2016, Decedent’s adult daughters, Samantha and Christina
Dunfee, filed suit.'! As co-administratrices of Decedent’s estate, Samantha and
Christina filed both a survival claim pursuant to 10 Del. C. §§ 3701,° and, as the

' Samantha A. Dunfee et al. v. KGL Holdings Riverfront, LLC et al., C.A. No. N16C-04-108

RRC, Compl. (Del. Super. Apr. 14, 2016).
2 Compl. § 18, Samantha A. Dunfee et al. v. KGL Holdings Riverfront, LLC et al., C.A. No.
N16C-04-108 RRC (Del. Super. Apr. 14, 2016).

2