DiMaio v. Christiana School Distrcit.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
KELLIE DIMAIO and KELLIE DIMAIO
and JOHN DIMAIO, JR., as Parents
and Natural Guardians for DD, a minor,
Plaintiffs,
v.
CHRISTIANA SCHOOL DISTRICT
Defendant.
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C.A. No. N12C-02-131 JRJ
ORDER
AND NOW, TO WIT, this 6th day of February, 2013, upon consideration
of Defendant’s Motion to Dismiss, and Plaintiffs’ opposition thereto, IT
APPEARS TO THE COURT THAT:
1.
On February 9, 2012, Plaintiffs, Kellie DiMaio and Kellie DiMaio
together with her husband, John DiMaio, Jr., on behalf of their son,
DD, a minor, 1 filed a Complaint alleging: Violation of the Delaware
Whistleblower’s Protection Act (Count I); Breach of covenant of
good faith and fair dealing (Count II); Negligence (Count III); and
Gross negligence (Count IV). 2
On May 10, 2012, Defendant,
Christiana School District, filed a motion to dismiss pursuant to
1
2
The minor plaintiff is referred to as “DD” in order to protect his privacy.
Trans. ID 42423670.
Superior Court Civil Rule 12(b)(6). 3
On December 6, 2012, this
Court issued an order denying Defendant’s motion to dismiss Counts I
and II, granting Defendant’s motion to dismiss Count III, and
deferring consideration of Defendant’s motion to dismiss Count IV
until after Plaintiffs filed an Amended Complaint. 4 Plaintiffs filed
their Amended Complaint on December 13, 2012.5
2.
Under the Delaware State Tort Claims Act (the “DSTCA”), Plaintiffs
must allege the absence of one or more of the following elements in
order to overcome sovereign immunity: “(1) the action was
discretionary in nature; (2) the action was done in good faith; [or] (3)
the action was done without gross or wanton negligence.” 6 Count IV
alleges gross negligence on the part of Defendant. “Gross negligence
is a higher level of negligence representing ‘an extreme departure
from the ordinary standard of care.’” 7
It is “more than ordinary
inadvertence or inattention.” 8 In fact, the Delaware Supreme Court
has compared gross negligence with criminal negligence as defined in
3
Trans. ID 44179290.
Trans. ID 48227063.
5
Trans. ID 48407773.
6
Smith v. Christina Sch. Dist., 2011 WL 5924393 at * 3 (Del. Super. Nov. 28, 2011), citing Stevenson v.
Brandywine Sch. Dist., et al., 1999 WL 742932, at *2 (Del. Super. July 9, 1999), citing Sprout v. Ellenburg Capital
Corp., 1997 WL 716901 (Del. Super. Aug. 16, 1997); 10 Del. C. § 4001.
7
Browne v. Robb, 583 A.2d 949, 953 (Del. 1990), quoting W. PROSSER, HANDBOOK OF THE LAW OF
TORTS 150 (2d ed. 1955).
8
Jardel Co., Inc. v. Hughes, 523 A.2d 518, 530 (Del. 1987).
4
2
11 Del. C. § 231(a). 9 Thus, gross negligence exists when a “person
fails to perceive a risk . . . of such a nature and degree that failure to
perceive it constitutes a gross deviation from the standard of conduct
that a reasonable person would observe in the situation.” 10 The Court
finds that the averments in Count IV of Plaintiffs’ Amended
Complaint are stated with sufficient particularity to plead gross
negligence, and therefore, 11 Defendant’s Motion to Dismiss Count IV
is DENIED.
IT IS SO ORDERED.
/s/Jan R. Jurden
Jan R. Jurden, Judge
cc: Prothonotary
9
Id.
11 Del. C. § 231(a).
11
Super. Ct. Civ. R. 9(b).
10
3
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