Rainey v. Wilmington Parking Authority

• Decision Date: 20 December 1984
• Citation: 488 A.2d 906
• Parties: Larry W. RAINEY and Penelope A. Rainey, Plaintiffs, v. The WILMINGTON PARKING AUTHORITY, a corporation of the State of Delaware, Defendant.
• Court: Delaware Superior Court

Page 906

488 A.2d 906

Larry W. RAINEY and Penelope A. Rainey, Plaintiffs, v. The WILMINGTON PARKING AUTHORITY, a corporation of the State of Delaware, Defendant.

Superior Court of Delaware New Castle County.

Submitted Sept. 21, 1984.

Decided Dec. 20, 1984.

On Motion of Defendant Wilmington Parking Authority to Dismiss--denied.

Thomas G. Hughes, of O'Donnell & Hughes, Wilmington, for plaintiffs.

Richard Galperin, of Morris, James, Hitchens & Williams, Wilmington, for defendant.

TAYLOR, Judge.

Plaintiffs seek damages from Wilmington Parking Authority [Authority] for personal injuries to plaintiff Larry W. Rainey which occurred when that plaintiff was assaulted and robbed while a patron at the Authority's parking facility at 9th and Shipley Streets, Wilmington, Delaware. Authority has moved to dismiss the action on the ground that it is protected by sovereign immunity pursuant to 10 Del.C. § 4010-4013. General issues of municipal immunity raised by the briefs in this case are dealt with in a decision of this Court in Porter v. Delmarva and Light Company, et al., Del.Super., 488 A.2d 899 (1984). The discussion and holding of Porter insofar as applicable to this case are adapted here.

Title 10, Chapter 40, Subchapter II specifies three areas in which a government entity may be sued for negligence: (1) ownership, maintenance or use of vehicles, machinery or equipment, (2) construction, operation or maintenance of public buildings or appurtenances, with certain specified exceptions not applicable here, and (3) sudden accidental pollution of air or water.

This suit involves an attack which allegedly occurred at the parking facility of the Authority. The attack is upon the alleged failure of the Authority to provide adequate security for its patrons. Applying the traditional liberality accorded a pleading, the Court cannot conclude, at least at this stage of the proceeding, that the Parking Authority's facility is not a public building as that term is used in 10 Del.C. § 4012(2). It is noted that § 4012(2) contains an exception which reads:

except as to historic sites or buildings, structures, facilities or equipment designed for use primarily by the public in connection with public outdoor recreation.

There has been no contention that this facility was an historic site or was designed primarily for recreational use by the public. Therefore, this facility does not fall within the exception. It is noted that a parking authority is a "governmental entity" within the definition in 10 Del.C. § 4010(2).

Authority contends that plaintiff's claim challenges a discretionary function, namely, the extent of protection to be provided to the Authority's patrons, and as such is excluded from the coverage of § 4012 by virtue of the exclusion found in § 4011(b). Authority contends that since 22 Del.C. Chapter 5 which authorizes creation of this Authority did not mandate that it shall provide for the protection of patrons of a parking authority, it was within the discretion of the Authority to determine whether or to what extent protection would be provided and hence is protected under § 4011(b)(3) from a suit. Defendant contends that any act which requires the exercise of judgment or choice is a discretionary act. Burgdorf v. Funder, Cal.App., 246 Cal.App.2d 443, 54 Cal.Rptr. 805 (1966). Stated another way, Authority contends that unless an act involves administration of "a mandatory duty at the operational level" it involves "policy making or judgment" and is a discretionary act, citing Jackson v. Kelly, 10th Cir., 557 F.2d 735 (1977). Burgdorf involved a suit against a tax collection employee who disallowed a claim for refund and the disallowance of the refund was held to be a discretionary act and immune from suit. Jackson was a malpractice suit against an Air Force physician and it was held that that treatment by a physician did not involve governmental discretion and that the physician was not protected by official immunity.

Maroon v. State Dept. of Mental Health, Ind.App., 411 N.E.2d 404 (1980) involved injury caused by a former inmate of a mental institution who escaped from that institution and caused injury. Maroon held that the act of maintaining custody of a mental patient is a ministerial act subject to a duty of reasonable care and was not subject to governmental immunity as a discretionary function.

Turner v. United States, D.D.C., 473 F.Supp. 317 (1979) involved an assault and robbery upon a cleaning supervisor employed by a maintenance contractor engaged in cleaning an office building of the U.S. Department of Agriculture. The claim rested upon the contention that the Department provided inadequate security protection for the cleaning personnel during evening hours when the building was not in use. Turner found plaintiff had not shown negligence on the part of the Department. Turner did not involve governmental immunity.

Cases holding that general police protection for the general public is within the discretionary function immunity are not of assistance here because this case does not fall into that class of cases. Seymour Nat'l Bank v. State, Ind.App., 179 Ind.App. 295, 384 N.E.2d 1177 (1979); Motyka v. City of Amsterdam, N.Y.App., 15 N.Y.2d 134, 256 N.Y.S.2d 595, 204 N.E.2d 635 (1965). New York City Housing Authority v. Medlin, N.Y.App.Div., 57 Misc.2d 145, 291 N.Y.S.2d 672 (1968); Matter of New York City Housing v. Jackson, N.Y.App.Div., 58 Misc.2d 847, 296 N.Y.S.2d 237 (1968); Huey v. Town of Cicero, Ill.Supr., 41 Ill.2d 361, 243 N.E.2d 214 (1968). This case involves a waiver of immunity relating specifically to...