Laws v. Handy

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CARLITA LAWS and )

CHARLES LAWS, II, individually )

and as Administrators of the Estate )

of CHARLES LAWS, III, )

)

Plaintiffs, )

)

v. ) C.A. No. N17C-01-414 ALR

)

VALORIE HANDY, and )

HANDY’S LITTLE DISCIPLES, )

and BOLARIUS HANDY, and )

DELAWARE DEPARTMENT )

OF SERVICES FOR CHILDREN, )

YOUTH, AND THEIR FAMILIES, )

OFFICE OF CHILD CARE )

LICENSING, and )

VIVIAN MURPHY )

)

Defendants. )

Submitted: May 1, 2017

Decided: July 21, 2017

MEMORANDUM OPINION

Upon State Defendants’ Motion to Dismiss

GRANTED IN PART and DENIED IN PART

ROCANELLI, J.

This is a wrongful death case arising from the death of 10-month-old Charles

Laws, III (“Baby Charles”) on January 28, 2015 at Handy’s Little Disciples Home

Daycare Center (“Daycare Center”), operated by Defendant Valorie Handy at a

residence owned by Ms. Handy’s husband, Defendant Bolarius Handy. Baby

Charles was under Ms. Handy’s supervision when Ms. Handy gave Baby Charles a

lethal dose of Benadryl. Baby Charles died as a result of the medication

administered by Ms. Handy.1

This civil action is brought by Baby Charles’ parents and estate (“Plaintiffs”).

In addition to claims of negligence and wrongful death against the Handys, Plaintiffs

assert claims of gross and wanton negligence against the Delaware Department of

Services for Children, Youth and Their Families, Office of Child Care Licensing

(“Licensing Entity”), and Supervisor of Childcare Licensing Vivian Murphy

(“Licensing Supervisor”). Specifically, Plaintiffs allege that the Licensing Entity

and Licensing Supervisor caused Baby Charles’ death by acting with gross and

wanton negligence in licensing, certifying, and supervising Ms. Handy to operate

1

Ms. Handy is committed to the custody of the Department of Correction as a result

of a criminal conviction for Criminally Negligent Homicide (Cr. Id. No.

1507011730) arising from the January 28, 2015 death of Baby Charles. Ms. Handy

was found Guilty by a jury of this lesser-included offense of the charged crime of

Murder by Abuse or Neglect First Degree, and has a good time release date of March

28, 2019.

1

the Daycare Center. (For ease of reference, the Court refers to the Licensing Entity

and Licensing Supervisor collectively as “State Defendants.”)

The State of Delaware has appeared on behalf of State Defendants and has

filed the Motion to Dismiss that is currently before the Court. Plaintiffs oppose State

Defendants’ Motion to Dismiss. To date, neither Ms. Handy2 nor Mr. Handy3 have

filed a response to the Motion to Dismiss. This is the Court’s Memorandum Opinion

on State Defendants’ Motion to Dismiss.

I. FACTUAL BACKGROUND

Baby Charles was born on March 16, 2014 and resided with Plaintiffs in

Millsboro, Delaware. Plaintiffs placed Baby Charles in the Daycare Center during

the workweek. On January 28, 2015, Plaintiffs left Baby Charles at the Daycare

Center under Ms. Handy’s supervision. Later that day, Ms. Handy administered a

large dose of Benadryl to Baby Charles. Ms. Handy did not have legal authority to

administer over-the-counter mediation and did not have the permission of Baby

Charles’ parents. Baby Charles died of diphenhydramine intoxication resulting from

a Benadryl overdose.

2

Ms. Handy has not appeared in this action, although the record reflects that Ms.

Handy has been served with process.

3

Mr. Handy has appeared in this action as a self-represented litigant and requested

an extension to respond to the Complaint in order to consult with an attorney. The

Court granted Mr. Handy’s request for an extension to answer or otherwise respond,

but Mr. Handy has not yet responded to the Complaint and counsel has not appeared

on his behalf.

2

Unbeknownst to Plaintiffs, another infant had been seriously injured under

Ms. Handy’s care prior to Baby Charles’ death. Specifically, two-month-old Jarod

Coursey (“Baby Jarod”) sustained permanent brain damage from shaken-baby

syndrome while under Ms. Handy’s supervision in 2001. Baby Jarod’s injuries

included subdural hematoma, retinal hemorrhaging, and cardiopulmonary arrest.

Baby Jarod currently leads a life of total dependence as a result of the 2001 incident.4

Plaintiffs allege that State Defendants acted with gross and wanton negligence

in licensing Ms. Handy to provide childcare pursuant to Delaware law and by failing

to supervise the Daycare Center following the 2001 incident involving Baby Jarod.

II. APPLICABLE LAW AND LEGAL STANDARDS

State Defendants argue that Plaintiffs’ cause of action against State

Defendants is barred by sovereign immunity and Section 4001 of the State Tort

Claims Act (“Section 4001”).5 In addition, State Defendants assert that Plaintiffs

claims against State Defendants are barred by the public duty doctrine.

4

Ms. Handy was found Not Guilty of Assault by Abuse in connection with the 2001

incident involving Baby Jarod (Cr. Id. No. 0109011510).

5

10 Del. C. § 4001.

3

A. Superior Court Civil Rules 12(b)(1) & 12(b)(6).

State Defendants have moved to dismiss the Complaint pursuant to Superior

Court Civil Rule 12(b)(1) for lack of subject matter jurisdiction. Rule 12(b)(1)

requires the Court to grant a motion to dismiss whenever it appears that the Court

lacks jurisdiction over the claims asserted in the complaint.6 “Notably, ‘[t]he burden

of establishing the Court’s subject matter jurisdiction rests with the party seeking the

Court’s intervention.’”7 In considering a motion under Rule 12(b)(1), “the Court

need not accept Plaintiffs’ factual allegations as true and is free to consider facts not

alleged in the complaint.”8

State Defendants have also moved to dismiss the Complaint pursuant to

Superior Court Civil Rule 12(b)(6) for failure to state a claim upon which relief can

be granted. A motion under Rule 12(b)(6) must be decided solely on the allegations

set forth in the complaint.9 Unlike the standards for a motion to dismiss under Rule

12(b)(1), the Court shall accept all well-pleaded allegations in the Complaint as true

6

See Super. Ct. Civ. R. 12(b)(1); Super. Ct. Civ. R. 12(h)(3).

7

Airbase Carpet Mart., Inc. v. AYA Assocs., Inc., 2015 WL 9302894, at *2 (Del.

Super. Dec. 15, 2015) (alteration in original) (citing Ropp v. King, 2007 WL

2198771, at *2 (Del. Ch. July 25, 2007)). See also Appriva S’holder Litig. Co. v.

EV3, Inc., 937 A.2d 1275, 1284 n.14 (Del. 2007) (“The burden is on the Plaintiffs to

prove jurisdiction exists.”).

8

Appriva, 937 A.2d at 1275 n.14 (quoting Phillips v. Cty. of Bucks, 1999 WL

600541, at *1 (E.D. Pa. Aug. 9, 1999)).

9

Walls v. Williams, 2006 WL 1133563, at *1 (Del. Super. Mar. 28, 2006).

4

and make all reasonable inferences in favor of the non-moving party.10 Factual

allegations, even if vague, are well-pleaded if they provide notice of the claim to the

other party.11 The Court should deny the motion to dismiss if the claimant “may

recover under any reasonably conceivable set of circumstances susceptible of

proof.”12

B. The Doctrine of Sovereign Immunity.

The Licensing Entity is eligible for sovereign immunity, which bars a lawsuit

against the state or federal government in the absence of express consent from the

legislature.13 Delaware courts are not empowered to disregard the doctrine of

sovereign immunity.14 Rather, sovereign immunity must be waived pursuant to a

clear manifestation of intent by the General Assembly. 15 The Delaware Supreme

Court has found that the State waives sovereign immunity “to the extent that either

10

Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998); Spence v. Funk, 396 A.2d

967, 968 (Del. 1978).

11

Spence, 396 A.2d at 968.

12

Id.

13

See U.S. CONST. amend. XI; DEL. CONST. art. 1, § 9; Sherman v. State, 133 A.3d

971, 975 (Del. 2016) (quoting Pauley v. Reinoehl, 848 A.2d 569, 573 (Del. 2004));

Janowski v. Div. of State Police, 981 A.2d 1166, 1169 (Del. 2009) (internal citations

omitted).

14

Pajewski v. Perry, 363 A.2d 429, 433 (Del. 1976) (citing Shellhorn & Hill, Inc. v.

State, 187 A.2d 71, 74 (Del. 1962)).

15

Hartmann v. Sibbold, 2010 WL 3397482, at *1 (Del. Aug. 30, 2010) (internal

citations omitted); Del. Dep’t of Health & Soc. Servs. v. Sheppard, 2004 WL

2850086, at *1 (Del. Dec. 10, 2004) (citing DEL. CONST. art. 1, § 9); Pauley, 848

A.2d at 573 (internal citations omitted).

5

the State insurance program was funded by direct appropriation (self-insurance) or

that the State purchased commercially available insurance to cover the loss.”16

C. Section 4001 of the State Tort Claims Act.

Section 4001 shields State employees,17 such as the Licensing Supervisor,

from civil liability if the State employee’s conduct (i) arose out of and in connection

with the performance of official duties involving the exercise of discretion, (ii) was

performed in good faith, and (iii) was performed without gross or wanton

negligence.18 Plaintiffs must establish the absence of only one of these elements to

defeat qualified immunity under Section 4001.19

D. The Delaware Child Care Act.

The Delaware Child Care Act (“DCCA”)20 authorizes State Defendants to

license, regulate, and supervise any person or organization providing childcare

16

Sherman, 133 A.3d at 975 (quoting Pauley, 848 A.2d at 573).

17

For the purposes of this case, Section 4001 will not be analyzed with respect to

the Licensing Entity because sovereign immunity has not been waived. Therefore,

it is not necessary to reach the question of whether qualified immunity under Section

4001 applies to the Licensing Entity. See infra Part III(A).

18

10 Del. C. § 4001; Christman v. Dep’t of Health & Soc. Servs., 2014 WL 3724215,

at *3 (Del. July 25, 2014) (quoting Jackson v. Minner, 2013 WL 4538321, at *1

(Del. Aug. 23, 2013)). See also Hughes ex rel. Hughes v. Christiana Sch. Dist., 2008

WL 2083150, at *2 (Del. May 19, 2008) (“In other words, Section 4001 provides

immunity to discretionary acts committed in good faith, in the course of the

performance of official duties and without gross or wanton negligence.”).

19

J.L. v. Barnes, 33 A.3d 902, 914 (Del. Super. 2001) (citing 10 Del. C. § 4001);

Minner, 2013 WL 4538321, at *1.

20

31 Del. C. § 341 et seq.

6

services in the State of Delaware.21 Child caretakers and daycare facilities are

required by DCCA to obtain a license from State Defendants prior to offering

childcare services.22 DCCA requires State Defendants to conduct a “thorough

investigation” before issuing a childcare license to ensure that the applicant meets

certain DCCA standards.23 In addition, Delaware law imposes a duty on the

Department of Services for Children, Youth and Their Families to monitor

residential and nonresidential childcare facilities, including daycare centers and

family daycare homes.24

E. The Public Duty Doctrine.

The judicially-created public duty doctrine bars certain claims against State

officials that arise from discretionary conduct.25 The public duty doctrine applies if

the State official owes a duty to the public at large rather than to a specific individual

when the alleged tortuous conduct is discretionary in nature.26 To the extent that

Plaintiffs’ claims arise from the discretionary acts of State Defendants, the claims

are barred by the public duty doctrine unless Plaintiffs can establish (i) an

21

Id. at § 343.

22

Id. at § 344(a).

23

See id. at § 344(b)–(c); 9 Del. Admin. C. § 101-1.0. et seq.

24

29 Del. C. § 9003(7).

25

J.L., 33 A.3d at 916; Higgins v. Walls, 901 A.2d 122, 143 (Del. Super. 2005)

(citing Johnson v. Indian River Sch. Dist., 723 A.2d 1200, 1203 (Del. Super. 1998)).

26

See Jackson v. Minner, 2013 WL 871784, at *3–4 (Del. Super. Mar. 1, 2014),

aff’d, 2013 WL 4538321 (Del. Aug. 23, 2013); Castellani v. Del. State Police, 751

A.2d 934, 938–39 (Del. Super. 1999), aff’d, 1999 WL 1319361 (Del. Dec. 9, 1999).

7

assumption of an affirmative duty to act by State Defendants; (ii) knowledge that

inaction by State Defendants could lead to harm; (iii) some form of direct contact

between State Defendants and the injured party; and (iv) justifiable reliance by

Plaintiffs on an affirmative undertaking by State Defendants.27

III. DISCUSSION

A. The Doctrine of Sovereign Immunity Bars this Lawsuit against the

Licensing Entity.

Plaintiffs have the burden of establishing jurisdiction over the Licensing

Entity28 by overcoming the doctrine of sovereign immunity. In this case, Plaintiffs

assert that sovereign immunity does not apply to the Licensing Entity because

Section 4001 constitutes a “black-letter”29 exception to sovereign immunity for

grossly negligent acts. However, “[g]rossly negligent acts per se and the State Tort

Claims comes (sic) into play only after an express intent to waive sovereign

immunity has been identified.”30 In other words, allegations of gross negligence

under Section 4001 are insufficient to overcome the Licensing Entity’s sovereign

immunity without an independent waiver of immunity.

27

Minner, 2013 WL 871784, at *4 (quoting Castellani, 751 A.2d at 938).

28

Appriva, 937 A.2d at 1275 n.14.

29

Pls.’ Resp. State’s Mot. Dismiss at 7.

30

Sheppard, 2004 WL 2850086, at *1 (emphasis in original). See also Parker v.

Wireman, 2012 WL 1536934, at *1 (Del. Super. Apr. 30, 2012) (citing J.L., 33 A.3d

at 913).

8

Plaintiffs cannot establish that the State has waived sovereign immunity as to

the Licensing Entity for the allegations set forth in Plaintiffs’ Complaint.

Accordingly, Plaintiffs cannot meet the threshold requirement for this cause of

action to proceed against the Licensing Entity. The Court finds that the Motion to

Dismiss must be granted as to the Licensing Entity pursuant to Rule 12(b)(1) and the

doctrine of sovereign immunity.

B. The Licensing Supervisor is Eligible for Qualified Immunity under

Section 4001 and the Protection of the Public Duty Doctrine but the

Lawsuit May Proceed Against the Licensing Supervisor.

Because the Licensing Supervisor is a State official acting in the scope of her

employment for the Licensing Entity, the Licensing Supervisor is eligible for

qualified immunity under Section 4001. Moreover, the Licensing Supervisor is a

public official who is eligible for the protections of the public duty doctrine. Upon

consideration of Section 4001 and the public duty doctrine, as well as the current

record, the Court declines to dismiss Plaintiffs’ claims against the Licensing

Supervisor as a matter of law.

i. Plaintiffs state claims upon which relief may be granted against the

Licensing Supervisor under Section 4001.

Plaintiffs are required to establish one of three possible avenues of relief in

order to defeat the Licensing Supervisor’s qualified immunity under Section 4001:31

31

See supra n. 20.

9

(i) ministerial action; (ii) bad faith; or (iii) gross negligence.32 Accepting all well-

pleaded allegations as true and making all reasonable inferences in favor of

Plaintiffs, there is a reasonably conceivable set of circumstances susceptible to proof

under which Plaintiffs could defeat the Licensing Supervisor’s qualified immunity.

With respect to Section 4001(1), the Court cannot determine whether the

decision to issue a license to Ms. Handy constitutes a discretionary act. An act is

discretionary where “there is no hard and fast rule as to [the] course of conduct that

one must or must not take.”33 In contrast, an act is non-discretionary or ministerial

“if the act of the official involves less in the way of personal decision or judgment

or the matter for which judgment is required has little bearing of importance upon

the validity of the act.”34 Ministerial acts “typically involve conduct directed by

mandatory rules or policies.”35 Here, the record does not indicate whether the

Licensing Entity maintains mandatory policies for issuing a childcare license, and,

if so, whether those policies were observed when the daycare license was issued to

Ms. Handy. Accepting all well-pleaded allegations as true, there is a reasonably

conceivable set of circumstances under which the decision to issue a childcare

license is subject to mandatory rules or policies. Accordingly, the Court cannot

32

See 10 Del. C. § 4001(1)–(3).

33

J.L., 33 A.3d at 914 (alteration in original).

34

Hughes ex rel. Hughes, 2008 WL 2083150, at *3 (quoting Sussex Cty. v. Morris,

610 A.2d 1354, 1358–59 (Del. 1992)).

35

J.L., 33 A.3d at 914 (citing Knoll v. Wright, 1988 WL 71466 (Del. June 29, 1988)).

10

dismiss Plaintiffs’ claims against the Licensing Supervisor as arising from an act of

discretion under Section 4001(1).

With respect to Section 4001(3), the Court cannot determine whether the

Licensing Supervisor was grossly negligent in issuing a daycare license to Ms.

Handy. Gross negligence is a heightened standard of ordinary negligence that is

defined as “an ‘extreme departure from the ordinary standard of care’ that ‘signifies

more than ordinary inadvertence or inattention.’”36 The Delaware Supreme Court

has equated gross negligence to criminal negligence under Delaware’s criminal

code,37 characterizing the applicable standard as the failure “to perceive a risk . . . of

such nature that failure to perceive it constitutes a gross deviation from the standard

of conduct that a reasonable person would observe in the situation.”38 “Ordinarily,

questions of gross negligence and willful or wanton conduct are for the jury and are

not susceptible of summary adjudication.”39

Here, accepting the well-pleaded allegations as true, Plaintiffs have stated a

claim upon which relief may be granted regarding the Licensing Supervisor’s

decision to issue a daycare license to Ms. Handy following the 2001 incident

36

Hecksher v. Fairwinds Baptist Church, Inc., 115 A.3d 1187, 1199 (Del. 2015)

(internal citations omitted).

37

Jardel Co. v. Hughes, 523 A.2d 518, 530 (Del. 1987).

38

11 Del. C. § 231.

39

Brown v. United Water Del., Inc., 3 A.3d 272, 276 (Del. 2010) (citing Pauley, 848

A.2d at 576).

11

involving Baby Jarod. Plaintiffs may be able to establish that the Licensing

Supervisor’s decision was a gross deviation from the licensing and supervision

requirements set forth under DCCA.40 Moreover, the Court cannot determine if the

decision to issue Ms. Handy’s license was “the result of something being

undiscoverable, mere negligence, or a pattern of institutional indifference amounting

to wanton negligence on the part of [a State employee].” 41 Accepting all well-

pleaded allegations as true, the Court finds a reasonably conceivable set of

circumstances susceptible to proof under which the Licensing Supervisor acted with

gross negligence by issuing a daycare license to Ms. Handy after the 2001 incident

involving Baby Jarod. Accordingly, the Court cannot dismiss Plaintiffs’ claims

against the Licensing Supervisor as a matter of law under Section 4001(3).

State Defendants assert that Plaintiffs fail to specify the actions by the

Licensing Supervisor which support a claim of gross negligence.42 This Court

disagrees. First, even if Plaintiffs fail to plead gross negligence with the requisite

particularity, the Court cannot dismiss Plaintiffs’ claims under Section 4001 as a

matter of law without determining whether the alleged conduct is discretionary or

ministerial in nature. In addition, the Complaint contains thirty-four separate

40

See 31 Del. C. § 344(b)–(c); 9 Del. Admin. C. § 101-1.0. et seq.

41

McCaffrey v. City of Wilmington, 133 A.3d 536, 557 n.23 (Strine, C.J., dissenting).

42

See Super. Ct. Civ. R. 9(b) (“In all averments of fraud, negligence or mistake, the

circumstances constituting fraud, negligence or mistake shall be stated with

particularity.”).

12

instances specifying the alleged gross indifference with which the Licensing

Supervisor licensed and/or failed to supervise Ms. Handy and the Daycare Center.

Accepting these allegations as true, the Court is satisfied that Plaintiffs have

adequately alleged “an extreme departure from the ordinary standard of care” 43 to

avoid summary disposition of their claims at the pleading stage. Moreover, the

Court finds that State Defendants have sufficient notice of the “act or omissions by

which it is alleged that a duty has been violated in order to enable the preparation of

a defense,”44 and that the Complaint alerts the Licensing Supervisor to her potential

liability45 without merely making a “general statement of the facts which admits of

almost any proof to sustain it.”46

Accepting the well-pleaded allegations in the Complaint as true with all

reasonable inferences made in favor of Plaintiffs, dismissing the claims against the

Licensing Supervisor is not appropriate as a matter of law under Section 4001. This

conclusion is not a final determination regarding the Licensing Supervisor’s actions

or a finding of gross or wanton negligence. Rather, the Court finds that there is a

43

Hecksher, 115 A.3d at 1199.

44

Doe 30’s Mother v. Bradley, 58 A.2d 429, 443 (Del. Super. 2012) (quoting State

Farm Fire & Cas., Co. v. Gen. Elec. Co., 2009 WL 5177156, at *5 (Del. Super. Dec.

1, 2009)). See also Ruof v. Dilks, 2015 WL 5438698, at *2 (Del. Super. June 16,

2015) (“Rule 9(b) ensures that a defendant is put on sufficient notice so that it may

defend itself against a plaintiff’s allegations.”) (internal quotation omitted).

45

Browne v. Robb, 583 A.2d 949, 953 (Del. 1990).

46

Id. (quoting Mancino v. Webb, 274 A.2d 711, 713 (Del. Super. 1971)).

13

reasonably conceivable set of circumstances susceptible to proof where Plaintiffs

could satisfy the applicable standard to overcome the Licensing Supervisor’s

qualified immunity under Section 4001. Therefore, the Court cannot dismiss

Plaintiffs’ claims against the Licensing Supervisor as a matter of law under Section

4001.47

ii. Plaintiffs state claims upon which relief may be granted against the

Licensing Supervisor under the public duty doctrine.

To the extent that the allegations against the Licensing Supervisor relate to an

exercise of discretion, the public duty doctrine may preclude Plaintiffs’ claims.48

However, the public duty doctrine would not apply to claims against the Licensing

Supervisor arising from ministerial conduct.49 Accepting the well-pleaded

allegations in Plaintiffs’ Complaint as true, the record is insufficient to determine

whether the Licensing Supervisor’s actions were discretionary, and there is a

reasonably conceivable set of circumstances susceptible to proof under which the

decision to issue a daycare license to Ms. Handy was ministerial. Because the Court

47

See Hale v. Elizabeth W. Murphey Sch., Inc., 2014 WL 2119652, at *5–6 (Del.

Super. May 20, 2014).

48

As previously discussed, Plaintiffs could proceed under the public duty doctrine

for discretionary conduct if Plaintiffs establish (i) an assumption of an affirmative

duty to act; (ii) knowledge that inaction could lead to harm; (iii) some form of direct

contact between State Defendants and the injured party; and (iv) justifiable reliance

on an affirmative undertaking by State Defendants. Minner, 2013 WL 871784, at *4

(quoting Castellani, 751 A.2d at 938).

49

J.L., 33 A.3d at 916 (internal citations omitted).

14

cannot determine the applicability of the public duty doctrine on the current record,

the Court declines to dismiss Plaintiffs’ claims against the Licensing Supervisor as

a matter of law on this basis.

III. CONCLUSION

Plaintiffs fail to establish jurisdiction over the Licensing Entity under the

doctrine of sovereign immunity. Accordingly, the Licensing Entity must be

dismissed as a party pursuant to Rule 12(b)(1). However, the Court hereby finds

that, accepting all well-pleaded allegations as true and viewing the Complaint in a

light most favorable to Plaintiffs, Plaintiffs state a claim upon which Plaintiffs could

recover against the Licensing Supervisor. Therefore, the Court declines to dismiss

the claims against the Licensing Supervisor as a matter of law pursuant to Rule

12(b)(6).

NOW, THEREFORE, this 21st day of July, 2017, State Defendants’

Motion to Dismiss is hereby GRANTED IN PART and DENIED IN PART. The

Delaware Department of Services for Children, Youth and Their Families,

Office of Child Care Licensing is dismissed as a party to this action. Plaintiffs’

claims against Supervisor of Childcare Licensing Vivian Murphy may proceed.

IT IS SO ORDERED.

Andrea L. Rocanelli

_____________________________

The Honorable Andrea L. Rocanelli

15