Moore v. Wilmington Housing Authority

• Decision Date: 20 October 1992
• Citation: 619 A.2d 1166
• Parties: Josephine MOORE, Plaintiff Below, Appellant, v. WILMINGTON HOUSING AUTHORITY, Defendant Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 1166

619 A.2d 1166

Josephine MOORE, Plaintiff Below, Appellant, v. WILMINGTON HOUSING AUTHORITY, Defendant Below, Appellee.

Supreme Court of Delaware.

Submitted: Oct. 20, 1992.

Decided: Feb. 8, 1993.

Upon appeal from the Superior Court. REVERSED and REMANDED.

David R. Scerba (argued), Ramunno & Ramunno, P.A., Wilmington, for appellant.

Roger A. Akin (argued), Sawyer & Akin, P.A., Wilmington, for appellee.

Before VEASEY, C.J., and HORSEY, MOORE, WALSH, and HOLLAND, JJ., constituting the Court en Banc.

VEASEY, Chief Justice:

This case presents for review the issue of whether a leased dwelling unit owned by a public housing authority is a "public building," and therefore within the statutory category of facilities as to which the doctrine of sovereign immunity is waived and not a bar to suit against the public housing authority for personal injuries arising out of the alleged negligence of the authority. We hold that, under the circumstances presented here, such a dwelling unit is a public building. Therefore, the doctrine of sovereign immunity does not insulate the authority from suit. The Superior Court held to the contrary. Accordingly, we reverse and remand.

On March 15, 1987, plaintiff/appellant Josephine Moore ("Moore") was allegedly injured when a ceiling collapsed in a rental unit she was visiting. The unit was owned by defendant/appellee Wilmington Housing Authority ("WHA") and leased to Moore's stepmother. Moore sued WHA alleging negligence. WHA moved to dismiss the complaint on the ground of governmental immunity pursuant to the Delaware Tort Claims Act ("the Act"). 10 Del.C. § 4010 et seq. The Superior Court held that WHA was immune from suit and granted defendant's motion to dismiss. The trial judge applied a "freedom of access" test and explained that, while governmental entities such as the WHA ¹ are liable for the negligent construction or maintenance of "public buildings," private rental units leased by the WHA cannot be classified as such under 10 Del.C. § 4012(2). Moore v. Wilmington Housing Authority, Del.Super., C.A. No. 87C-OC-19, 1992 WL 19939 (Feb. 4, 1992). Moore appeals from the Superior Court's order of dismissal. The standard and scope of review is whether the trial court erred as a matter of law in its construction of the term "public building" as it is used in the statute. This Court reviews questions of law de novo. Fiduciary Trust Co. v. Fiduciary Trust Co., Del.Supr., 445 A.2d 927, 930 (1982).

Section 4012(2) provides:

§ 4012. Exceptions to immunity.

A governmental entity shall be exposed to liability for its negligent acts or omissions causing property damage, bodily injury or death in the following instances:

....

(2) In the construction, operation or maintenance of any public building or the appurtenances thereto, except as to historic sites or buildings, structures, facilities or equipment designed for use primarily by the public in connection with public outdoor recreation.

Id. Since the construction of the term depends almost entirely on the context in which it is used, it is first necessary to ascertain the intent of the General Assembly in enacting the legislation.

An examination of the House Bill which became 10 Del.C. Ch. 40 on July 5, 1979, evidences an intent on the part of the General Assembly to remove prior waivers of sovereign immunity and to define the areas where governmental liability would exist. Porter v. Delmarva Power & Light Company, Del.Super., 488 A.2d 899, 904 (1984). The Act was passed in the wake of two Delaware Supreme Court decisions that essentially eliminated the constitutional defense of sovereign immunity with respect to counties and municipalities. See City of Wilmington v. Spencer, Del.Supr., 391 A.2d 199 (1978); Varity Builders, Inc. v. Polikoff, Del.Supr., 305 A.2d 618 (1973). The objective of the Act was to overcome the effect of those cases. The preamble of the Act expressly provides:

WHEREAS, the Courts of the State of Delaware have recently reversed precedent and have pronounced that the counties and certain municipalities of the State of Delaware no longer are protected by the Constitutional defense of sovereign immunity; and

WHEREAS, the provision of vital local governmental services is thereby placed in substantial jeopardy by the Courts' decisions; and

WHEREAS, the cost of insurance, when obtainable, has reached proportions unanticipated by local government as a result of the multiplicity of lawsuits filed against local governments in recent years.

62 Del.Laws Ch. 124. The remainder of the Act restructured the existing Act by denominating its then current provisions, sections 4001 through 4005, inclusive, as Subchapter I, "State Tort Claims," and setting forth a new Subchapter II, entitled "County and Municipal Tort Claims" ("Subchapter II"). Id. Newly enacted section 4011(a) specifically states: "Except as otherwise expressly provided by statute, all governmental entities and their employees shall be immune from suit on any and all tort claims seeking recovery of damages." 10 Del.C. § 4011(a); 62 Del.Laws Ch. 124. Given the language of the legislation, it is clear that the General Assembly intended to reestablish sovereign immunity with respect to counties and municipalities, subject to certain exceptions set forth therein. Porter, 488 A.2d at 904.

This Court has considered the General Assembly's intent in enacting the Act on several occasions. In the case of Walls v. Rees, Del.Supr., 569 A.2d 1161, 1167 (1990), we described the Act "as reflecting the legislature's intention to broaden the doctrine of sovereign immunity." Five years previously, in the case of Fiat Motors v. Mayor and Council, Del.Supr., 498 A.2d 1062 (1985), we held that various provisions of the Act support a ruling that " § 4011(a) was intended--to provide a new and broader scope of municipal immunity." Id. at 1066. Additionally, in the case of Sadler v. New Castle County, Del.Supr., 565 A.2d 917, 923 (1989), we strictly construed the section 4012 exceptions to sovereign immunity so as not to undermine the broad immunity granted by the Act. Nevertheless, this Court has also recognized that the General Assembly intended to accomplish more than merely broadening immunity through its enactment of Subchapter II.

The scope of the doctrine of sovereign immunity had been criticized by the courts of this State for a number of years. See Fiat Motors, 498 A.2d at 1066. As a result, this Court repeatedly called upon the General Assembly to supply relief from the injustices which sovereign immunity sometimes inflicts upon wronged private citizens. Id. at 1066-67. The virtual elimination of sovereign immunity with respect to counties and municipalities in the cases of City of Wilmington v. Spencer and Varity Builders, Inc. v. Polikoff ultimately caused the General Assembly to respond with the passage of the revised Act.

The objective of Subchapter II was two-fold. First, because municipal and county immunity had been essentially eliminated, the General Assembly extended immunity to those governmental entities. Second, the General Assembly was answering this Court's call to provide wronged private citizens with relief from the injustices that are inherent in the doctrine of sovereign immunity. Id. In essence, the General Assembly intended to strike a balance between the rights of individuals and the interests of society in general, as represented by municipal entities. Id. at 1067.

There are no published opinions by the courts of this State defining or analyzing the meaning of the term "public building" as it is used in 10 Del.C. § 4012(2). ² In an unpublished opinion in 1990, the Superior Court addressed this issue in the case of Cox v. Wilmington Housing Authority, Del.Super., C.A. No. 89C-MR-201, 1990 WL 177578 (Nov. 8, 1990). ³ Plaintiff sued the WHA and others after being struck on the head by a 40-pound section of cast iron pipe that was thrown from the third story of an unoccupied WHA residential structure. ⁴ WHA moved for summary judgment on the ground that it was immune from suit under the County and Municipal Tort Claims Act. Plaintiff and WHA's co-defendants opposed the motion, arguing that WHA was exposed to liability pursuant to 10 Del.C. § 4012(2). The specific issue before the court was whether the "structure is a 'public building' for purposes of § 4012(2)." Id. at 4.

Citing Webster's Ninth New Collegiate Dictionary, the Superior Court noted that something is public when it relates to or affects "all the people or the whole area of a nation or a state--or relat[es] to business or community interests as opposed to private affairs...." Cox, slip op. at 5. The Superior Court also cited Black's Law Dictionary 1105 (5th ed. 1979), which defines a public building as:

One of which the possession and use, as well as the property in it, are in the public. Any building held, used, or controlled exclusively for public purposes by any department or branch of government, state, county, or municipal, without reference to the ownership of the building or of the realty upon which it is situated. A building belonging to or used by the public for the transaction of public or quasi public business.

Basing its ruling upon both definitions, the Superior Court defined "public building" as meaning "one intended for and/or used by the public for a purpose benefitting the general public." Id. The opinion further explained that a public building "is to be contrasted with a structure that is intended to benefit private interests or the interests of individuals who are a part of the general populace, but which does not otherwise have a direct impact on the overall community." Id. Since the residence in question was not open to the general public, the Superior Court held that the structure was not a "public building" for purposes of § 4012(2). Id. at 6.

The court's reasoning in Cox appears to be flawed in two respects. First, although the Superior Court...