IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

NICOLE LISOWSKI, Individually and as )

Next Friend of BRANDON RODRIGUEZ, )

JEREMIAH RODRIGUEZ, and )

NICHOLAS O‘BRIEN, minors, and )

JUAN RODRIGUEZ, in his capacity as )

Personal Representative of the Estate of )

ALEXIS RODRIGUEZ, )

)

Plaintiffs, )

)

v. ) C.A. No. N15C-04-228 ALR

)

BAYHEALTH MEDICAL CENTER, INC. )

d/b/a KENT GENERAL HOSPITAL, )

)

Defendant. )

MEMORANDUM OPINION

Date Submitted: April 22, 2016

Date Decided: May 11, 2016

Upon Defendant’s Partial Motion to Dismiss

GRANTED IN PART and DENIED IN PART 

David G. Culley, Esq., Tybout, Redfearn & Pell, Wilmington, Delaware, Attorney 

for Plaintiffs Nicole Lisowski, et al.

Melony R. Anderson, Esq., and James E. Drnec, Esq., Balick & Balick, LLC,

Wilmington, Delaware, Attorneys for Defendant Bayhealth Medical Center, Inc. 

ROCANELLI, J. 
2

FACTUAL AND PROCEDURAL BACKGROUND

On April 23, 2015, Plaintiffs Nicole Lisowski and Juan Rodriguez filed the 

present wrongful death and survival action against Defendant Bayhealth Medical 

Center, Inc. d/b/a Kent General Hospital (―Bayhealth‖) for Bayhealth‘s alleged 

medical negligence that lead to the death of Alexis Rodriguez (―Decedent‖) on 

April 25, 2013. While Juan Rodriguez, Decedent‘s father, filed this action in his 

capacity as the personal representative to Decedent‘s estate, Lisowski filed this 

action in an individual capacity and as the biological mother of minor Plaintiffs 

Brandon Rodriguez, Jeremiah Rodriguez, and Nicholas O‘Brien.

Lisowski and Decedent cohabited, owned a home together, and were in an 

exclusive relationship for approximately thirteen (13) years. Prior to Decedent‘s 

death, Lisowski was Decedent‘s primary caregiver. It is undisputed that Lisowski 

and Decedent never participated in any civil or religious marriage ceremony and

never obtained a valid marriage license. Indeed, Lisowski and Decedent were 

never lawfully married in the State of Delaware or elsewhere. 

Plaintiffs Brandon Rodriguez and Jeremiah Rodriguez are the biological 

children of Lisowski and Decedent. Plaintiff Nicholas O‘Brien is the biological 

child of Lisowski; however, Decedent is not Nicholas‘ biological father nor did 

Decedent ever formally adopt Nicholas. Instead, Lisowski shares custody of 

Nicholas with Nicholas‘ biological father (―O‘Brien‖), whom Lisowski never 
3

married. Lisowski and O‘Brien‘s original custody arrangement began after 

Nicholas was born in 2000 and consisted of Nicholas living with Lisowski and 

Decedent during the week and Nicholas living with O‘Brien on the weekends and 

holidays. During this arrangement, O‘Brien paid Lisowski child support for 

Nicholas. In approximately 2011, the custody arrangement between O‘Brien and 

Lisowski changed. Nicholas began living with O‘Brien during the week and living 

with Lisowski and Decedent only on the weekends, holidays, and during summer 

vacation. This is the present custody arrangement between Lisowski and O‘Brien. 

On February 16, 2016, Bayhealth filed the present partial motion to dismiss, 

seeking to dismiss Lisowski and Nicholas, arguing that Lisowski and Nicholas lack 

standing to pursue this action. 

STANDARD OF REVIEW

In deciding a motion to dismiss, the Court shall accept all well-pleaded 

allegations as true and make all reasonable inferences in favor of the non-moving 

party.1 Factual allegations, even if vague, are well-pleaded if they provide notice 

of the claim to the other party.2 The Court should deny the motion if the claimant 

 

1

Spence v. Funk, 396 A.2d 967, 968 (Del. 1978); Ramunno v. Cawley, 705 A.2d 1029, 1034 

(Del. 1998).

2

Spence, 396 A.2d at 968.
4

―may recover under any reasonably conceivable set of circumstances susceptible of 

proof.‖3

DISCUSSION

A. The Parties’ Contentions 

Bayhealth argues that neither Lisowski nor Nicholas can pursue this action 

because they lack standing under 10 Del. C. § 3721 et. seq. (―Wrongful Death 

Statute‖ or ―Statute‖). Bayhealth contends that the Statute is unambiguous and 

explicitly limits actions for wrongful death to a decedent‘s ―spouse, parent, child[,] 

and siblings of the [decedent].‖

4

 Therefore, Bayhealth argues that Lisowski lacks 

standing because Lisowski and Decedent were never lawfully married. Similarly, 

Bayhealth argues that Nicholas lacks standing under the Wrongful Death Statute

because Decedent was not Nicholas‘ biological father and Decedent never stood in 

loco parentis to Nicholas. In contrast, Plaintiffs argue the legislative intent behind 

the Wrongful Death Statute suggests that Lisowski should be able to proceed in her 

action considering the nature of her relationship with Decedent and Nicholas can 

claim damages for mental anguish under the Statute because Decedent stood in 

loco parentis to Nicholas. 

 

3

Id.

4

10 Del. C. § 3724(a). 
5

B. Rules of Statutory Interpretation

Delaware rules of statutory construction are well-established and are 

―designed to ascertain and give effect to the intent of the legislators, as expressed 

in the statute.‖5 The Court must first determine whether the statutory provision is 

ambiguous.6 The mere fact that parties dispute an interpretation of a statute does 

not make the statute ambiguous.7 Instead, a statute is ambiguous if it is 

―reasonably susceptible of two interpretations‖

8

or if ―if a literal reading of the 

statute would lead to an unreasonable or absurd result not contemplated by the 

legislature.‖9 

When a statute is unambiguous, statutory construction is unnecessary.10 

Rather, the Court should give the words in the statute their plain meaning.11 Some 

courts have determined that to give a statutory term its plain meaning is to consider 

 

5 Delaware Bd. of Nursing v. Gillespie, 41 A.3d 423, 427 (Del. 2012) (internal citations omitted) 

(―The goal of statutory construction is to determine and give effect to legislative intent.‖); see 

also Dewey Beach Enterprises, Inc. v. Bd. of Adjustment of Town of Dewey Beach, 1 A.3d 305, 

307 (Del. 2010).

6

Taylor v. Diamond State Port Corp., 14 A.3d 536, 538 (Del. 2011); Dewey Beach Enterprises, 

Inc., 1 A.3d at 307. 

7 Chase Alexa, LLC v. Kent Cty. Levy Court, 991 A.2d 1148, 1151 (Del. 2010). 

8

Taylor, 14 A.3d at 538; Dewey Beach Enterprises, Inc., 1 A.3d at 307.

9 Delaware Bd. of Nursing, 41 A.3d at 427. 

10 See Taylor, 14 A.3d at 538; Dewey Beach Enterprises, Inc., 1 A.3d at 307.

11 See Zhurbin v. State, 104 A.3d 108, 110 (Del. 2014) (internal citations omitted) (―Where a 

statute contains unambiguous language that clearly reflects the intent of the legislature, then the 

language of the statute controls.‖); Dewey Beach Enterprises, Inc., 1 A.3d at 307 (―If [a statutory 

provision] is unambiguous, no statutory construction is required, and the words in the statute are 

given their plain meaning.‖); Hoover v. State, 958 A.2d 816, 819 (Del. 2008) (―If the language of 

the statute is unambiguous, the plain meaning of the words controls.‖). 
6

the term‘s common and/or ordinary meaning.12 However, if a statutory provision 

is ambiguous, then the Court must consider the statute as a whole and read each 

part ―in light of the others to produce a harmonious whole.‖13 If a statutory 

provision is ambiguous, the Court should read it in such a way to promote its 

apparent purpose.14 

C. Nicole Lisowski does not have standing to bring a claim under the

Wrongful Death Statute because she and Decedent were not legally

married.__________________________________________________________ 

The Wrongful Death Statute provides: ―[a]n action under this subchapter 

shall be for the benefit of the spouse, parent, child and siblings of the deceased 

person.‖

15

 Although the Statute defines ―parent,‖ ―child,‖ and ―sibling,‖16 the 

Statute does not define ―spouse.‖ This Court finds that the Wrongful Death Statue

with respect to the term ―spouse‖ is unambiguous and, therefore, the Court need 

not engage in any statutory construction. Specifically, ―spouse‖ is not reasonably 

susceptible to more than one interpretation. Instead, an individual is either a 

 

12 See, e.g., Nw. Nat. Ins. Co. v. Esmark, Inc., 672 A.2d 41, 44 (Del. 1996) (considering the 

common and ordinary meaning of the term ―under‖); Moore v. Chrysler Corp., 233 A.2d 53, 55 

(Del. 1967) (―Words in statutes must be given their common and ordinary meanings.‖); State v. 

Virdin, 1999 WL 743988, at *3 (Del. Super. Aug. 20, 1999) (finding that ―pregnant‖ has a 

common and ordinary meaning); O’Donald v. O’Donald, 430 A.2d 800, 803 (Del. Fam. Ct.

1981) (―[S]tatutes will be given their common and ordinary meaning[.]‖).

13 Taylor, 14 A.3d at 538; Dewey Beach Enterprises, Inc., 1 A.3d at 307. 

14 Delaware Bd. of Nursing, 41 A.3d at 427. 

15 10 Del. C. § 3724(a) (emphasis added). 

16 See 10 Del. C. § 3721. 
7

spouse or not – married or not.17 Indeed, ―spouse‖ has a common or ordinary 

meaning. Black‘s Law Dictionary defines ―spouse‖ as ―[o]ne‘s husband or wife by 

lawful marriage; a married person.‖18 Webster‘s Dictionary defines ―spouse‖ as 

―someone who is married: a husband of a wife.‖19 Importantly, Delaware does not 

recognize common law marriage.20 

In Boyer v. Irvin, the Court of Chancery was required to determine the 

meaning of ―surviving spouse‖ within the context of 12 Del. C. § 264 (the rights of 

others to control the disposition of the remains of a decedent) where ―surviving 

spouse‖ was undefined.21 In defining ―surviving spouse,‖ the Court of Chancery 

concluded: ―[G]iven the statutory scheme governing marriage in this State, the 

Court concludes that  ̳spouse‘ in this context must mean a decedent‘s spouse 

pursuant to a lawful marriage as defined in Title 13, Chapter 1 of the Delaware 

Code[.]‖22 Similarly, in Burris v. PHB, Inc., the Superior Court addressed the 

definition of ―surviving spouse‖ within the meaning of worker‘s compensation

 

17 See Virdin, 1999 WL 743988, at *3 (determining that the term ―pregnant‖ is unambiguous 

because, inter alia, one is either pregnant or not). 

18 Spouse, BLACK‘S LAW DICTIONARY (10th ed. 2014). 

19 Spouse, MERRIAM-WEBSTER‘S DICTIONARY (2016). 

20 Boyer v. Irvin, 2007 WL 3119792, at *3 (Del. Ch. Oct. 19, 2007) (noting that Delaware does 

not recognize common law marriage); Bradley v. Bradley, 867 A.2d 193, 195 (Del. Fam. Ct. 

2002) (same); Wilmington Finishing Co. v. Leary, 2000 WL 303320, at *3 (Del. Super. Mar. 8, 

2000) (same); Harleysville Mut. Cas. Ins. Co. v. Carroll, 123 A.2d 128, 131 n.3 (Del. Super. 

1956) (same). 

21 Boyer, 2007 WL 3119792, at *2. 

22 Id. (emphasis added). 
8

benefits.

23

 The Court determined that ―surviving spouse‖ was unambiguous and 

deferred to the definitions of ―surviving spouse‖ and ―spouse‖ within Black‘s Law 

Dictionary.24 Accordingly, the Court determined that a woman was not entitled to 

her ex-husband‘s worker‘s compensation benefits when the two were legally 

divorced at the time of the husband‘s death.25 

This Court finds that the Wrongful Death Statute is unambiguous – only 

those who were married to Decedent at the time of his death can pursue a claim as 

a ―spouse.‖ Moreover, even assuming arguendo that the term spouse is

ambiguous, the Wrongful Death Statute shows intent to limit the recovery to those 

related to a decedent by blood or marriage. The Statute specifies that if there are 

no individuals who qualify as a spouse, parent, child, or sibling, then an action 

under the Statute ―shall be for the benefit of any person related to the deceased 

person by blood or marriage.‖26 

Further, the Statute defines ―parent,‖ ―child,‖ and ―sibling‖ to include 

various relationships. Specifically, the Statute defines ―parent‖ to include ―the 

 

23 Burris v. PHB, Inc., 1999 WL 463715, at *2 (Del. Super. May 14, 1999). 

24 Id. (internal citations omitted) (holding:

The term  ̳surviving spouse‘ is not ambiguous nor is it reasonably susceptible to 

different interpretations. Therefore, deference will be given to common usage. 

Black‘s Law Dictionary [1990] defines  ̳surviving spouse‘ as  ̳[t]he spouse who 

outlives (survives) the other spouse.‘ [Black‘s Law Dictionary] [1990] further 

defines  ̳spouse‘ as  ̳[o]ne‘s husband or wife, and  ̳surviving spouse‘ is one of a 

married pair who outlive the other.‘ The definition given to the term  ̳wife‘ is  ̳a 

woman united to a man by marriage; a woman who has a husband living and 

undivorced.‘)

25 Id. 

26 10 Del. C. § 3724(b)(emphasis added). 
9

mother and father of a deceased illegitimate child‖;27 ―child‖ to include ―an 

illegitimate child‖;28 and ―sibling‖ to include ―brothers and sisters of the whole and 

half blood or by order of adoption.‖29 Nevertheless, the Statue does not define 

―spouse.‖ This Court finds that the failure to define the term spouse was thus 

intentional and that the General Assembly did not intend to expand the definition 

beyond its common or ordinary meaning. This Court cannot assume that the lack 

of a definition of ―spouse‖ was a mere oversight on behalf of the General 

Assembly.

30

 Instead, ―where [. . .] provisions are expressly included in one part of 

a statute, but omitted from another, it is reasonable to conclude that the legislature 

was aware of the omission and intended it.‖

31

The Court sympathizes with Lisowski and her loss, especially considering 

the nature of Lisowski‘s relationship with Decedent. Indeed, the Court accepts 

Lisowski‘s claim that she was the wife of Decedent in every way even though they 

were never legally married. The Court also recognizes and appreciates that, in 

many respects, the law has developed to adjust to the evolving definition of a 

 

27 10 Del. C. § 3721(2). 

28 10 Del. C. § 3721(1).

29 10 Del. C. § 3721(4).

30 See Giuricich v. Emtrol Corp., 449 A.2d 232, 238 (Del. 1982) (―We may not assume that the 

omission was the result of an oversight on the part of the General Assembly.‖). 

31 In re Adoption of Swanson, 623 A.2d 1095, 1097 (Del. 1993) (citing Giuricich, 449 A.2d at 

238). 
10

modern family.32 However, the Court‘s hands are tied with respect to the explicit 

language that the General Assembly chose in drafting the Wrongful Death Statute. 

Nevertheless, regardless of the Court‘s views ―as to the wisdom of [a] statute, [its] 

role as [a] judge[] is limited to applying the statute objectively and not revising 

it.‖33 Therefore, where it is undisputed that Lisowski and Decedent were never 

lawfully married, Lisowski cannot pursue a claim under the Statute. 

D. There are insufficient facts in the record to determine if Decedent stood in

loco parentis to Nicholas; therefore, dismissal of Nicholas’ claim is 

inappropriate at this stage in the proceedings._________________________

The Statute limits the individuals who can seek damages for mental anguish 

to the ―surviving spouse, children and persons to whom the deceased stood in loco 

parentis at the time of the injury which caused the death of the deceased[.]‖34 

Black‘s Law Dictionary defines ―in loco parentis‖ as ―[o]f, relating to, or acting as 

a temporary guardian or caretaker of a child, taking on all or some of the 

responsibilities of a parent.‖35 Delaware courts have referred to a parent standing 

in loco parentis as a ―person who puts himself in the situation of a lawful parent by 

 

32 See, e.g., 10 Del. C. § 901(12) (defining a ―family‖ as ―husband and wife; a man and woman 

cohabiting in a home in which there is a child of either or both; custodian and child; or any group 

of persons related by blood or marriage who are residing in 1 home under 1 head or where 1 is 

related to the other by any of the following degrees of relationship, both parties being residents 

of this State . . . .‖); see also 13 Del. C. § 129 (recognizing equal treatment of marital 

relationships to same-gender couples and their children). 

33 In re Adoption of Swanson, 623 A.2d 1095, 1097 (Del. 1993). 

34 See 10 Del. C. § 3724(d)(5)(emphasis added). 

35 In loco parentis, BLACK‘S LAW DICTIONARY (10th ed. 2014).
11

assuming obligations incident to the parental relation without going through the 

formalities necessary to a legal adoption.‖36

It is undisputed that Decedent was not Nicholas‘ biological father and 

Decedent never formally adopted Nicholas. At the time of Decedent‘s death, 

Nicholas lived with O‘Brien during the week and then lived with Lisowski and 

Decedent on weekends, holidays, and summer vacations. Decedent never claimed 

Nicholas as a dependent on any income taxes. Lisowski claimed Nicholas as a 

dependent on her income taxes until approximately 2011 when O‘Brien began 

claiming Nicholas on his income taxes. 

In viewing the facts in the light most favorable to the non-moving party, 

Plaintiffs, this Court does not have enough information—based on the record 

presently before it—to determine whether Decedent stood in loco parentis to 

Nicholas at the time of Decedent‘s death. While the current record develops the 

relationship between Nicholas and O‘Brien, the record does not sufficiently 

address whether Decedent assumed ―obligations incidental to the parental 

relation‖37 with Nicholas. Accordingly, the Court is not satisfied at this stage in 

 

36 Trievel v. Sabo, 1996 WL 944981, at *6 (Del. Super. Mar. 13, 1996); Gill v. Celotex Corp., 

565 A.2d 21, 24 (Del. Super. 1989) (internal citations omitted). 

37 See Trievel, 1996 WL 944981, at *6. 
12

the proceedings that Nicholas cannot ―recover under any reasonably conceivable 

set of circumstances susceptible of proof.‖38

CONCLUSION 

The Wrongful Death Statute provides for a limited number of individuals 

who may pursue an action under the Statute. With respect to spouses, the Statute is 

unambiguous and although this Court recognizes that it may produce an unfair 

result, the Court is bound by the legal meaning of the term ―spouse.‖ Because 

Lisowski and Decedent were never lawfully married, Lisowski cannot recover 

under the Statute; therefore, Bayhealth‘s partial motion to dismiss with respect to 

dismissing Plaintiff Nicole Lisowski must be granted. Moreover, the Statute 

permits those persons to whom the decedent stood in loco parentis to recover 

damages for mental anguish. The record lacks enough information to determine 

whether Decedent stood in loco parentis to Nicholas; therefore, Bayhealth‘s partial 

motion to dismiss with respect to Plaintiff Nicholas O‘Brien is denied. 

NOW, THEREFORE, this 11th day of May, 2016, Defendant Bayhealth 

Medical Center d/b/a Kent General Hospital’s partial motion to dismiss is 

hereby GRANTED IN PART and DENIED IN PART. 

IT IS SO ORDERED.

Andrea L. Rocanelli

____________________________________

The Honorable Andrea L. Rocanelli

 

38 Spence, 396 A.2d at 968.