Triple C Railcar Service, Inc. v. City of Wilmington

• Decision Date: 01 June 1993
• Citation: 630 A.2d 629
• Parties: TRIPLE C RAILCAR SERVICE, INC., Plaintiff Below, Appellant, v. The CITY OF WILMINGTON, a municipal corporation of the State of Delaware, Defendant Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 629

630 A.2d 629

TRIPLE C RAILCAR SERVICE, INC., Plaintiff Below, Appellant, v. The CITY OF WILMINGTON, a municipal corporation of the State of Delaware, Defendant Below, Appellee.

Supreme Court of Delaware.

Submitted: June 1, 1993.

Decided: Aug. 25, 1993.

Appeal from Superior Court. Affirmed.

C. Scott Reese (argued), Cooch and Taylor, Wilmington, for plaintiff appellant.

Jeffrey S. Goddess (argued), Rosenthal, Monhait, Gross & Goddess, P.A., Wilmington, for defendant appellee.

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

WALSH, Justice:

In this appeal from the Superior Court, we examine the question of governmental immunity under the County and Municipal Torts Claim Act, 10 Del.C. § 4010 et seq. The appellant, Triple C Railcar Service, Inc. ("Triple C"), contends that the Superior Court erred in granting summary judgment in favor of the City of Wilmington ("City") in an action for damages for the City's alleged negligence in the maintenance of a tidegate which resulted in the flooding of Triple C's property. Triple C also assigns as error the Superior Court's rejection of its claim that Triple C is an intended third-party beneficiary of a contract between the City and the federal government which requires proper maintenance of the tidegate. We conclude that the City enjoys immunity from claims arising out of the negligent operation of the tidegate and that Triple C is not entitled to third-party beneficiary status. Accordingly, we affirm.

I

In reviewing the grant of summary judgment, we view the facts, as did the Superior Court, from the plaintiff's perspective, according Triple C the benefit of all factual inferences. Triple C operates a railcar maintenance facility in a low lying area of New Castle County known as the Shellpot Basin. The area in question is adjacent to Shellpot Creek, a tributary flowing into the Delaware River. For many years, a tidegate had existed across Shellpot Creek to regulate the tide flow from the Delaware River which, if left unchecked at times of heavy tides, creates the risk of flooding in the Shellpot Basin.

In 1976, the City applied for a federal grant to reconstruct the tidegate to control better the flow of water from the Delaware River. Under a grant from the United States Department of Commerce, the City constructed a large dam-like structure composed of eight 84"' steel flapgates. The flapgates were enclosed in a concrete structure with a walkway and parkway grates on top. Trash racks, to catch debris, were constructed on both sides of the structure along its entire length. As designed and constructed, the tidegate structure extended 120 feet across Shellpot Creek with the gates opening to permit upstream water to flow through to the Delaware River and closing to prevent high tides from the river flooding areas along the Shellpot Basin. Essential to the operation of the tidegates was the removal of debris from the trash racks because the debris might otherwise prevent the gate flaps from operating. Indeed, a condition of the federal grant for construction of the tidegates required the City to "operate and maintain the facility."

In 1986, Triple C entered into an agreement with Conrail for lease of a site, consisting of land, buildings and trackage, for operation of a railroad car repair facility. On two occasions in the summer of 1989, the site was subject to extensive flooding after heavy rainstorms, resulting in damage to buildings and equipment. It was later determined that the flooding was attributable, in part, to the failure of the Shellpot Creek flood gates to permit flow from Shellpot Creek into the Delaware River. In an action filed in Superior Court, Triple C alleged that the flood gates failed to operate because of the accumulation of debris around and in the trash racks. The City has admitted that it had performed no debris removal at the tidegate structure between the 1977 reconstruction until the 1989 flooding. Thus, for the purpose of summary judgment disposition, negligence on the part of the City was conceded.

In moving for summary judgment in the Superior Court, the City argued that its assumed negligence could not be a basis for recovery under the County and Municipal Torts Claim Act ("Act"), 10 Del.C. § 4012 et seq., and that Triple C could not recover as an intended third-party beneficiary under the City's agreement with the federal government to maintain the tidegates. In granting summary judgment, the Superior Court rejected Triple C's contention that the City's immunity from suit did not extend to negligence claims arising out of the "ownership, maintenance or use of ... equipment" under 10 Del.C. § 4012(1). The court further ruled that Triple C, as a member of the public, was entitled to third-party beneficiary status only if such an intent was expressly manifested in the agreement between the City and the federal government. Since the Court was unable to find any such provision, it concluded that Triple C cannot be deemed a third-party beneficiary with standing to assert a contractual claim.

II

The Superior Court's rulings represent application of statutory or legal precepts to undisputed facts. Our review of such decisions is de novo. Levinson v. First Delaware Insurance Co., Del.Supr., 549 A.2d 296, 298 (1988). Gilbert v. El Paso Co., Del.Supr., 575 A.2d 1131, 1141 (1990).

The City's claim of immunity for claims arising from its failure to maintain the tide gates is based on the Act's broad language and the narrow construction afforded any exceptions thereto. Fiat Motors of North America, Inc. v. Mayor and Council of the City of Wilmington, Del.Supr., 498 A.2d 1062, 1066 (1985). This Court has recognized the legislative intention in this area as "not only to provide a broad statutory premise for the invocation of immunity but also to eliminate the uncertain distinction between governmental and proprietary activities of municipal entities." Sadler v. New Castle County, Del.Supr., 565 A.2d 917, 921 (1989). Although the question of whether the Act extends immunity for municipal torts implicating discretionary conduct continues to be the subject of debate, Sussex County v. Morris, Del.Supr., 610 A.2d 1354 (1992), we are not here concerned with the discretionary/ministerial distinction. Triple C relies solely upon the so-called equipment exception under § 4012(1). Indeed, it would appear that the requirement that the City keep the tidegates free of debris to permit them to serve their intended function is so clearly a routine maintenance obligation that the failure of the City to remove debris, on its face, is an act of ministerial negligence.

In relying upon the equipment exception, Triple C must fashion its claim to fall with the specific language of 10 Del.C. § 4012(1), 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."

In Sadler, this Court cautioned that using the term "equipment" to "embrace an endless variety of material items within the possession, ownership, or control of a governmental entity ... may seriously erode the Act's general grant of immunity and result in the exception swallowing the rule." Sadler, 565 A.2d at 922-23. To avoid such an approach, we endorsed application of the interpretive principle of ejusdem generis, i.e., "where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned." Black's Law Dictionary 464 (5th ed. 1979). In Sadler, we further defined the excepted equipment class by use: "the equipment exception is ... limited to those items of unusual design or size, such as motor vehicles, aircraft or electric transmission lines, which in their normal use or application pose a particular hazard to members of the public." Sadler, 565 A.2d at 923. The clear inference in Sadler is that governmental immunity should not extend to negligent use and operation of equipment which present risks to the public because of its high mobility or inherent dangerousness.

While it might be argued that the tidegate structure is of "unusual design or size," in its normal use or application it poses no particular hazard. Like most structures affixed to the land serving a passive governmental function such as water control, the tidegate does not carry or generate energy or contain hazardous components. Similar to a dam, it is located in an isolated area, poses little danger to the general public and, as contrasted with motor vehicles or electric transmission lines, mere contact with the structure poses no particular harm.

Triple C seeks to distinguish Sadler and other equipment exception cases, Ritgert v. City of Rehoboth Beach, D.Del., 655 F.Supp. 1101 (1987) (boardwalk bench) and White v. City of Wilmington, Del.Super., C.A. No. 84C-AP-87, 1986 WL 5850, Balick J. (May 8, 1986) (handcuffs), on the ground that in those cases the equipment was merely incidental to the municipality's misconduct. Here, it is argued, the...