Ritgert v. City of Rehoboth Beach

• Decision Date: 09 March 1987
• Docket Number: Civ. A. No. 86-448-JLL.
• Parties: Helen I. RITGERT and John M. Ritgert, Plaintiffs, v. The CITY OF REHOBOTH BEACH, a municipal corporation, Defendant.
• Court: U.S. District Court — District of Delaware

655 F. Supp. 1101

Helen I. RITGERT and John M. Ritgert, Plaintiffs, v. The CITY OF REHOBOTH BEACH, a municipal corporation, Defendant.

Civ. A. No. 86-448-JLL.

United States District Court, D. Delaware.

March 9, 1987.

Gary W. Aber of Heiman and Aber, Wilmington, Del., for plaintiffs.

B. Wilson Redfearn and Nancy E. Chrissinger of Tybout, Redfearn, Casarino & Pell, Wilmington, Del., for defendant.

MEMORANDUM OPINION

LATCHUM, Senior District Judge.

INTRODUCTION

This case compels the Court to resolve the pressing metaphysical question of when is a bench not just a bench but also a piece of equipment. Helen and John Ritgert (the "Ritgerts") brought suit against the City of Rehoboth Beach ("Rehoboth") to recover damages for injuries caused by a bench which struck Mrs. Ritgert's leg. In lieu of answering the Ritgerts' complaint, Rehoboth filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. Rehoboth contends that the Ritgerts' suit is barred by 10 Del.C. §§ 4010 et seq., the County and Municipal Tort Claims Act (the "Act").

Jurisdiction exists by virtue of 28 U.S.C. § 1332, because of the parties' diversity of citizenship. For purposes of Rehoboth's motion to dismiss, the Court must construe all material facts alleged in the Complaint in the light most favorable to the Ritgerts and order dismissal only if the Ritgerts are not entitled to relief under any set of facts they could prove. Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). The material facts of this case are not in dispute for purposes of this motion which presents the single issue of whether the Ritgerts' suit is barred by the Act. For the reasons stated below, the Court concludes that the Act does bar the Ritgerts' suit. Therefore, Rehoboth's motion to dismiss will be granted.

FACTS

On September 24, 1984, the Ritgerts were walking on the Rehoboth boardwalk when Mrs. Ritgert was struck in the left leg by a wooden bench. (Docket Item "D.I." 1 at ¶¶ 5, 6.) Allegedly, Mrs. Ritgert suffered a fractured tibia and ankle for which she seeks monetary damages, and both Mr. and Mrs. Ritgert claim they have suffered a loss of consortium. (Id. at ¶¶ 9, 14.) The Ritgerts contend that Rehoboth was negligent in that it (1) failed to secure the bench when it knew or should have known that the wind had moved benches in the past, (2) failed to construct the bench so as to prevent its unexpected movement, and (3) failed to warn pedestrians about sudden unexpected movement of benches. (Id. at ¶ 7.)

ANALYSIS

Rehoboth bases its motion to dismiss solely on the contention that the County and Municipal Torts Claim Act cloaks the City with a protective wrap of immunity from this suit. The general rule in Delaware has always been that a municipality is immune from suit for its own negligent acts or omissions unless such immunity has been statutorily modified or waived. Fiat Motors of North America, Inc. v. Mayor and Council of the City of Wilmington, 498 A.2d 1062, 1064 (Del. Supr.1985), citing Varity Builders, Inc. v. Polikoff, 305 A.2d 618 (Del.Supr.1973). The Act was passed by the Legislature in 1979 despite prior calls from the courts to supply relief from what was viewed as an inequitable doctrine. Fiat Motors, 498 A.2d at 1066-67.

The Act contains a broad grant of immunity followed by specific exceptions to this grant of immunity. Section 4011(a) of the Act 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. That a governmental entity has the power to sue or be sued, whether appearing in its charter or statutory enablement, shall not create or be interpreted as a waiver of the immunity granted in this subchapter.

Subsection (b) provides specific examples of acts for which a governmental entity is immune from suit. The statute explicitly states that these examples are not to be interpreted to limit the general immunity provided by § 4011(a). The specific exceptions to § 4011(a) immunity are set forth in § 4012 which provides:

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:

(1) In its ownership, maintenance or use of any motor vehicle, special mobile equipment, trailer, aircraft, or other machinery or equipment, whether mobile or stationary.

(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.

(3) In the sudden and accidental discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalines and toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water. (Emphasis Added)

The Delaware Supreme Court has declared that the activities listed in § 4012 are the only exceptions to the general rule of municipal immunity. Fiat Motors, 498 A.2d at 1066.

The Ritgerts contend that this suit is not barred by the immunity bestowed upon Rehoboth by § 4011, because the bench which caused Mrs. Ritgert's injuries is equipment excepted from the general grant of immunity by § 4012(1).¹ Counsel for Ritgert makes a facially intriguing argument to support the contention that the bench is equipment, but this argument is devoid of substance and does not accurately reflect the limited body of case law interpreting the Act.

The Ritgerts' brief cites Porter v. Delmarva Power & Light Co., 488 A.2d 899 (Del.Super.1984), and contends that the Porter court held that the term "equipment" should be liberally construed because it constitutes a waiver of sovereign immunity. Actually, the Porter court stated that § 4012 should be given "a liberal but realistic application." 488 A.2d at 905 (emphasis added). Additionally, this Court has stated that "the statute § 4012(1) must be read in context and the facts of each case applied to that context." Hedrick v. Blake, 531 F.Supp. 156, 158 (D.Del. 1982). The importance of context is reflected in the Black's Law Dictionary (4th Ed.-Revised) definition of "equipment" which is as follows: "Furnishings or outfit for the required purpose. An exceedingly elastic term, the meaning of which depends on context."

The Ritgerts' brief provides another definition of equipment which is "the means with which a task can be accomplished." Ballentine's Law Dictionary (3rd Ed.) Relying on this definition, the argument is advanced that a bench is equipment because it is the means by which the "task" of sitting is accomplished. (D.I. 9 at 6.) The Court is unconvinced by this formalistic etymological approach. The Court does not believe that sitting is a task as that word is used in the Ballentine's definition. A person who has been standing or walking all day is apt to consider sitting a relief rather than a task. If the Ritgerts' argument is taken to its logical extreme, then everything upon which one can sit, including a kitchen counter, a horse, and the ground, is equipment.² Although the small number of cases interpreting what constitutes equipment for purposes of § 4012(1) do not eliminate the possibility that benches are equipment, they support a definition of equipment as items which are closely akin to machinery and tools.

In Porter, the Superior Court had to determine whether the City of Dover was immune from a suit seeking to recover for injuries sustained by a minor plaintiff who climbed a metal utility pole and came in contact with high voltage electric transmission lines. The City was sued because it owned, operated, and maintained the utility pole and transmission lines which were a part of its municipal electric power system. To resolve this issue, the Court had to decide whether the pole and lines were equipment for purposes of § 4012(1). The Porter court stated that equipment is defined as "the implements (as machinery or tools) used in an operation or activity." Id. at 906, quoting Websters' Third New International Dictionary, p. 768. The Porter court also held that the equipment exception did apply. The court referred to cases in other jurisdictions which held that utility facilities and appurtenances are equipment. See, e.g., Southwestern Bell Tel. Co. v. Calvert, 479 S.W.2d 697 (Tex. Civ.App.1972) (telephone pole); KDAL, Inc. v. County of St. Louis, 308 Minn. 101, 240 N.W.2d 560 (1976) (transmission tower). In Hedrick, this Court was presented with the argument that a police nightstick is machinery or equipment for the task of striking the plaintiff. This argument was rejected in the context of the particular facts of the case. 531 F.Supp. at 158.

This Court does not interpret Porter to mean that only utility facilities and appurtenances can come within the equipment exception of § 4012(1), but does find it significant to note the definition of equipment selected by the Porter court and to recognize the qualitative difference between what was deemed to be equipment in Porter and a wooden bench. Although sitting might be considered an "activity" by some, the Porter definition of equipment focuses on whether some item is part of an active process. A bench is not a machine or tool....