IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR KENT COUNTY

BRET AND PATTY SHEPARD and
JASON, BRYAN, LOUISE AND
PATRICK PAULEY,
Plaintiffs,
v.
KIMBERLY A . REINOEHL, et al.,
Defendants.

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) C.A. No. 99C-06-030
)
00C-08-042
)
(Consolidated)
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Submitted: August 9, 2002

Decided: August 21, 2002

Richard E. Poole, Esq., Wilmington, Delaware. Attorney for Plaintiffs.

George H. Seitz, III, Esq., Wilmington, Delaware. Attorney for Defendants Delaware
State Police, Department of Public Safety and State of Delaware.
Jeffrey M. Weiner, Esq., Wilmington, Delaware. Attorney for Defendant Reinoehl.

Upon Consideration of the Motions for Summary Judgment

Filed by Defendants Kimberly A. Reinoehl, Delaware State Police,
Department of Public Safety and State of Delaware
GRANTED

VAUGHN, Resident Judge

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OPINION
Plaintiffs Jason, Bryan, Louise and Patrick Pauley brought suit to recover for
injuries from an auto accident. They claim that defendant Kimberly A. Reinoehl, a
state police officer, caused the accident through negligence or gross negligence. They
also claim that the Delaware State Police, the Department of Public Safety and the
State of Delaware (the State or the State defendants) are liable as her employer
and the owner of the police car. They also claim that the state police were negligent
in the way Officer Reinoehl was trained and supervised, and that this negligence was
itself a proximate cause of the accident. The defendants have moved for summary
judgment. They raise issues concerning sovereign immunity, the State Tort Claims
Act, and 21 Del. C. 4106 which pertains to authorized emergency vehicles. They
also test the sufficiency of the evidence as it pertains to alleged gross negligence or
willful or wanton negligence on the part of Defendant Reinoehl and alleged
contributory negligence on the part of Louise Pauley.
THE FACTS
At approximately 8:15 a.m. on August 24, 1998, Louise Pauley was driving her
automobile northbound in the center lane of State Route 1, a multilane highway, near
its intersection with the entrance to Rehoboth Outlets, No. 3, in or near Rehoboth
Beach, Delaware. Her sons Jason, age 12, and Bryan, age 9, and Bret Cooper
Shepard and Andrew Lorence, both age 9, were passengers. As she approached the
intersection, she had a green light. At the same time, Defendant Reinoehl was
responding to an emergency call that a burglar alarm had gone off at the Outlets. She
was driving her police cruiser southbound on State Route 1 with her emergency siren
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and lights turned on. Rehoboth Outlets, No. 3 lies on the east side of Route 1.
Initially, however, Officer Reinoehl thought the location of the alarm was on the west
side of Route 1. About a half-mile north of the intersection, she deactivated her siren.
There is some dispute as to whether she also deactivated her police lights, but for
purposes of this motion it will be taken as fact that she turned them off as well.
Shortly before the intersection, she realized that Rehoboth Outlets, No. 3 was on the
east side and moved across the several lanes of State Route 1 southbound from the
right hand lane to the right lane of two left-hand turn lanes to make the turn into the
Outlets. As she arrived at the intersection, several vehicles were stopped in the
northbound lanes of Route 1, obstructing the officers view of the northbound lanes
beyond the vehicles she could see stopped. These vehicles had apparently been
stopped at a red light facing northbound traffic, and had not yet started moving
although the light facing northbound traffic had turned green by the time the officer
arrived at the intersection. A vehicle traveling in front of Mrs. Pauley in the
northbound center lane went through intersection under the green light. The officer
then started across the northbound lanes to the Outlets entrance. As she did so, she
shifted her attention from the northbound lanes to the entrance to the Outlets. She did
not see Mrs. Pauleys vehicle, which was at that time proceeding through the
intersection. The vehicles then collided in the intersection, causing injury to Mrs.
Pauley and her two sons and causing the death of Bret Cooper Shepard.
STANDARD OF REVIEW
Summary judgment should be rendered if the record shows that there is no
genuine issue as to any material fact and the moving party is entitled to judgment as
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a matter of law.1 The facts must be viewed in the light most favorable to the
nonmoving party. 2 Summary judgment may not be granted if the record indicates that
a material fact is in dispute, or if it seems desirable to inquire more thoroughly into
the facts in order to clarify the application of the law to the circumstances.3 However,
when the facts permit a reasonable person to draw but one inference, the question
becomes one for decision as a matter of law.4
SOVEREIGN IMMUNITY
The State is immune from suit unless the General Assembly has enacted a
statute waiving that immunity. 5 The defendants have advised the Court that the State
has self-insurance in the amount of $1,000,000 for claims arising out of this accident.
It is the States position that sovereign immunity is waived to the extent of the
$1,000,000 of self-insurance. The statutory basis for the waiver, the State says, is 18
Del. C. 6511, which reads as follows:
The defense of sovereign immunity is waived and cannot
and will not be asserted as to any risk or loss covered by
the state insurance coverage program, whether same be
covered by commercially procured insurance or by selfinsurance, and every commercially procured insurance
1

Superior Court Civil Rule 56(c).

Guy v. Judicial Nominating Commn, 659 A.2d 777, 780 (Del. Super. Ct. 1995);
Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1087 (Del. Super. Ct. 1994).
3

Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).

Wooten v. Kiger, 226 A.2d 238 (Del. 1967).

Del. Const. art. I, 9; Shellhorn & Hill, Inc. v. State, 187 A.2d 71 (Del. 1962).
4

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contract shall contain a provision to this effect, where
appropriate.
This provision has been discussed in a number of Supreme Court cases. A
history of that Courts analysis of 6511 appears in the 1995 case of Turnbull v.
Fink.6 The case reaffirms the reasoning of prior cases which held that 18 Del. C.
6511 waives sovereign immunity where risks or losses are covered by the State
Insurance Coverage Program. The case also restates the findings in earlier cases that
the State Insurance Coverage Program had never come into existence. In this case I
am content to acknowledge the States willing concession that it may be sued in this
case to the extent of its $1,000,000 of self-insurance. The State indicates that the
claims against the defendants based upon the officers operation of the police car are
within that coverage. The State also indicates, however, that the claims based upon
alleged negligent training and supervision are not within that coverage. The
defendants do, therefore, assert the defense of sovereign immunity in full as to those
claims. The plaintiffs have not challenged the States view that the claims based upon
alleged negligent training and supervision are not within the coverage of the selfinsurance. I will therefore accept as fact that those claims are not covered.
A portion of the $1,000,000 coverage has been used to settle the Shepard
familys claim for the death of their son.7 At oral argument, counsel for the State

668 A.2d 1370 (Del. 1995).

The amount paid in settlement to the Shepard family and the amount remaining and
available to the Pauley family are part of the record of this case.
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defendants represented that the State has offered all of the remaining insurance
coverage to settle the Pauley familys claims.
The plaintiffs, however, contend that their claims are not limited to the States
insurance coverage. They contend that the State Tort Claims Act8 waives sovereign
immunity without regard to insurance coverage as to all claims against the State
except those where the act itself preserves immunity. The act reads in relevant part
as follows:
Except as otherwise provided by the . . . laws . . . of
the State, as the same may expressly require . . ., no claim
. . . . shall arise . . . against the State or any public officer or
employee . . . in any civil suit . . . where the following
elements are present:
(1) The act or omission complained of arose out of
and in connection with the performance of an official duty
requiring a determination of policy, the interpretation or
enforcement of statutes, rules or regulations, the granting
or withholding of publicly created or regulated entitlement
or privilege or any other official duty involving the
exercise of discretion on the part of the public officer,
employee or member . . .
(2) The act or omission complained of was done in
good faith and in the belief that the public interest would
best be served thereby; and
(3) The act or omission complained of was done
without gross or wanton negligence; . . .
8

10 Del. C. 4001- 4005.

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This statute shields the State and its public officers or employees from liability where
the act or omission complained of arises from (1) an official duty involving certain
forms of discretion, (2) the public officer or employee acts in good faith with the
belief that the public is best served by the act or omission, and (3) the act or omission
is done without gross or wanton negligence. The presence of all three factors gives
the State and the public officer or employee statutory immunity, but if any one of the
three factors is absent, the act itself provides no immunity at all. The burden of
proving the absence of one of the three elements is on the claimant.
The plaintiffs contend that the first factor is absent because driving a vehicle
is a ministerial act, not a discretionary act as that term is used in the statute. The
defendants, or at least the State defendants, concede this issue.9 The plaintiffs also
contend that Officer Reinoehl drove with gross or wanton negligence. The act does
not bar claims based upon gross or wanton negligence. The plaintiffs also contend
that the training and supervision of state police officers is ministerial in nature, not
discretionary, or at least that there are disputed, material facts as to that issue which
preclude summary judgment at this time.
The view advocated by the plaintiffs, however, is a misconception of the nature
of the State Tort Claims Act. The act was enacted not to waive sovereign immunity,
but to establish statutory limitations on civil liability of the State and its officers and

At oral argument, counsel for the plaintiffs agreed that for purposes of this litigation
Officer Reinoehl should receive the same treatment as the State on the sovereign immunity issue.
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C.A. No. 99C-06-030
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employees where the General Assembly by some separate act waives sovereign
immunity. This principle was authoritatively stated by then Justice Christie in Doe
v. Cates,10 as follows:
Appellants also claim that the State Tort Claims Act . . .
provides for a waiver of all sovereign immunity except
such sovereign immunity as is specifically preserved in that
act. We find no merit to this contention.
*

The title of the bill speaks of limiting civil liability. It does

not mention sovereign immunity at all.
*

In keeping with the purpose of the State Tort Claims Act,

this Court holds that 4001 must be applied to limit the
States liability where it has, by some means independent
of 10 Del. C. 4001, waived immunity. 11
Judge Stapleton expressed a similar view in the earlier case of Space Age Products,
Inc. v. Gilliam.12
This principal was succinctly stated by Judge Quillen in the case of Stevenson
v. Brandywine School District.13 as follows:
10

499 A.2d 1175 (Del. 1985).

11

Id. 1179-1181.

12

488 F. Supp. 775 (Dist. Del. 1980).

13

1999 Del. LEXIS 401 (Del. Super. Ct. 1999).

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C.A. No. 99C-06-030
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The doctrine of sovereign immunity provides that the State
cannot be sued without its consent. (citing Doe). The only
way the State can waive its sovereign immunity is by act of
the General Assembly. Id. For the Plaintiff in this action to
prevail, she must overcome two hurdles. First, the State
must be said to have waived the defense of sovereign
immunity for the actions mentioned in the Complaint.
Second the Plaintiff must prove that the State Tort Claims
Act, 10 Del. C. 4001-05, does not bar the action.
The plaintiffs claims that Officer Reinoehl was improperly trained and
supervised do not get past the first hurdle. No statutory enactment has been identified
in which the General Assembly has waived sovereign immunity for claims arising
from the way the State Police trains and supervises its officers. Since the General
Assembly has not waived sovereign immunity as to the plaintiffs claims that Officer
Reinoehl was not properly trained or supervised, summary judgment on those claims
must be granted.
As to the claims based upon the officers alleged improper driving, the
plaintiffs get past the first hurdle to the extent of the remaining self-insurance based
upon the States non-assertion of sovereign immunity for that amount. They are
limited to the amount of the remaining self-insurance, however, unless they can show
that a statute contains a waiver of sovereign immunity in excess of that amount. They
contend that 21 Del. C. 4106 is such a statute.
It reads in relevant part as follows:
(a) The driver of an authorized emergency vehicle,
when responding to an emergency call or when in the
pursuit of an actual or suspected violator of the law or
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when responding to but not upon returning from a fire
alarm, may exercise the privileges set forth in this section,
but subject to the conditions herein stated.
(b) The driver of an authorized emergency vehicle
may:
(1) Park or stand, irrespective of the
provisions of this chapter;
(2) Proceed past a red or stop signal or stop
sign, but only after slowing down as may be necessary for
safe operation;
(3) Exceed the speed limits so long as the
driver does not endanger life or property;
(4) Disregard regulations governing direction
of movement or turning in specified directions.
(c) The exemptions herein granted to an authorized
emergency vehicle shall apply only when such vehicle is
making use of audible or visual signals meeting the
requirements of this title, except that an authorized
emergency vehicle operated as a police vehicle need not
make use of such signals.
(d) The driver of an emergency vehicle is not liable
for any damage to or loss of property or for any personal
injury or death caused by the negligent or wrongful act or
omission of such driver except acts or omissions
amounting to gross negligence or willful or wanton
negligence so long as the applicable portions of subsection
(c) have been followed. The owner of such emergency
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vehicle may not assert the defense of governmental
immunity in any action on account of any damage to or
loss of property or on account of personal injury or death
caused by the negligent or wrongful act or omission of
such driver or owner.
(e) Authorized emergency vehicles . . . mean . . .
police vehicles.
Officer Reinoehl was clearly driving an authorized emergency vehicle at the time of
the accident. The plaintiffs contend that the second sentence of subsection (d), which
prohibits the owner of the vehicle from asserting the defense of governmental
immunity, is an unlimited waiver of sovereign immunity where people are injured by
negligent drivers of state owned emergency vehicles.
This contention requires a brief review of the history of the authorized
emergency vehicle statute. When originally enacted, subsection (d) read as follows:
(d) The foregoing provisions shall not relieve the driver of
an authorized emergency vehicle from the duty to drive
with due regard for the safety of all persons, nor shall such
provisions protect the driver from the consequences of his
reckless disregard for the safety of others.
On April 7, 1978 a case was decided in this Court which held that a volunteer fireman
for the Millsboro Fire Company was liable for negligence for causing an accident
while driving a fire truck to a fire.14 On July 11, 1978 an amendment to subsection

14

Green v. Millsboro Fire Co., Inc., 385 A.2d 1135 (Del. Super. Ct. 1978).
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C.A. No. 99C-06-030
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(d) was approved, which changed (d) to its current form.15 The subsection now limits
the liability of drivers to gross negligence or willful or wanton negligence. While
there is no express documentation linking the 1978 case with the amendment, given
the timing of the case and the amendment, it is reasonable to infer that the case had
a bearing on the passage of the amendment.
In 1983, this Court had occasion to discuss revised subsection (d) in a case
involving New Castle County.16 A county policeman in a county owned police car
was in hot pursuit of a fleeing motorcyclist. The chase ended when the motorcyclist
crashed into another vehicle. An injured passenger on the motorcycle sued the
county, claiming that the accident was caused by negligence on the part of the police
officer.17 The county acknowledged that it could not assert governmental immunity
as a defense to a claim for injuries based on the officers negligence, but argued that
it could not be vicariously liable under respondeat superior where the employee had
no liability. Noting that the County and Municipal Tort Claims Act18 expressly
provides that a county is liable for a negligent act causing injury in the use of a
county owned vehicle, the Court rejected the countys contention, and held that the
county was still subject to suit for the policemans ordinary negligence, although the

15

61 Del. Laws, c. 461.

16

Bradely v. New Castle County, 1983 Del. LEXIS 695, (Del. Super. Ct. 1983).

17

Apparently there was no allegation that the officers alleged negligence was gross or
willful or wanton.
18

10 Del C. 4010- 4013.

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C.A. No. 99C-06-030
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policeman was not. The State here agrees that it is liable for negligent driving to the
extent of the limits of the self-insurance.
The Court also briefly touched on subsection (d) in a case involving a fire
policeman.19 There, the Court held that the fire policemans properly equipped,
privately owned vehicle was an authorized emergency vehicle, rejecting a contention
that the term only applies to fire company owned vehicles. The Court observed that
the second sentence of subsection (d) meant that the protections afforded by the
statute were limited to drivers, not owners, a limitation consistent with 10 Del. C.
4012 of the County and Municipal Tort Claims Act20 and the requirement that
vehicles be insured.
I am not persuaded that the 1978 amendment must or should be given the scope
advocated by plaintiffs. If the General Assembly intended to waive sovereign
immunity completely and expose the State to unlimited liability for injuries caused
by emergency vehicles, it could have chosen far more direct language to express that
intent. Why the General Assembly would chose to expand a waiver of sovereign
immunity in an amendment, the apparent purpose of which was to grant immunity
from negligence to the driver, is a question with no ready answer. The most
reasonable explanation for the government immunity language in the amendment
to subsection (d) is that it was intended simply to clarify that the grant of immunity
from negligence was personal to the driver only, and not meant to apply to a

19

Rohrer v. Faries, 1990 Del. LEXIS 401 (Del. Super. Ct. 1990).

20

The act also covers registered volunteer fire companies.

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C.A. No. 99C-06-030
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government entity which, without the amendment, was subject to suit for the drivers
negligence. I rule that subsection (d) does not waive sovereign immunity for any
amount in excess of the States self-insurance. Summary judgment for the moving
defendants will be granted on condition that the State tender the Pauley plaintiffs the
full, remaining amount of its self-insurance.21
GROSS, WILLFUL OR WANTON NEGLIGENCE
Officer Reinoehl has also moved for summary judgment on the grounds that,
as a matter of law, her conduct does not amount to gross negligence or wanton or
willful negligence.
Officer Reinoehls liability is governed by the express terms of the authorized
emergency vehicle statute.22 Under subsection (d) she is not liable if her conduct was
merely negligent. Gross negligence or willful or wanton negligence is required.23

21

The plaintiffs urge the Court to consider the case of Carter v. McLaughlin, 2000 Del.
LEXIS 162 (Del. 2000). However, the decision in that case was vacated. 758 A.2d 933.
22

The Court also notes that the opening phrase of the State Tort Claims Act, 4001,
expressly subordinates that section to the express requirements of other statutes, such as, in this
case, the authorized emergency vehicle statute which predicates a drivers liability on gross
negligence or willful or wanton negligence.
23

The plaintiffs argue in their brief that the officer is liable for ordinary negligence if her
conduct does not fall within one of the four privileges set forth in subsection (b) of the authorized
emergency vehicle statute, citing Curtis v. Martelli, 1996 Del. LEXIS 23, (Del. Super. Ct. 1996).
In that case, the plaintiff claimed that the emergency vehicle driver was negligent eight different
ways. The Court stated that three of the grounds of negligence were within the privileges and
were subject to a gross, willful or wanton negligence standard, but that five of them were not and
were subject to an ordinary negligence standard. The five are not set out in the opinion.
Subsection (b) simply gives drivers of emergency vehicles the privilege of disregarding the rules
of the road under some circumstances. In any event, under the plain language of subsection (d),
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There is evidence in the record that the officers lights and siren were both off
as the officer approached the intersection on Route 1 southbound. Debra Doucette
described the officers driving as follows:

Q: Can you tell me in your own words what you remember

about the accident or the events leading up to the accident?
A: I was approaching Route 1 at the intersection with
Atlantic Liquors and as I was turning onto Route 1 the
police vehicle Im not sure whether the light was green
or red for them, but came through at what I considered a
dangerous rate of speed for the summertime, and with no
lights, no siren, and in my mind I said Hes going to kill
somebody, not knowing that the officer was a woman.
And the police vehicle proceeded down the road at what I
thought was a high rate of speed. And I continued on
down the road approaching the intersection where the
accident took place. I heard the noise of an accident. And
when I approached the light where the accident was, I saw
the overturned vehicle, the police cruiser, and bodies on the
ground.
* * *
Q: You also made the statement something to the effect
and please correct me if Im wrong that hes going to kill
somebody. What made you say that to yourself?
A: Its just what went through my mind when the vehicle
the driver of an authorized emergency vehicle is not liable for ordinary negligence, and to the
extent the plaintiffs contend that the officer is liable for ordinary negligence, their contention is
rejected.
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passed me. I just had this shiver that went through me that
something was going to happen.
In another answer she testified that the officer was going too fast without
warning on the vehicle for anybody to be aware that the vehicle was coming at you,
to get out of their way.
Michael DiGangi, an eyewitness to the accident, said the officer was traveling
quite fast as she came down Route 1 southbound. He also said that the officer was
traveling about 30 miles per hour as she made her left turn across the northbound
lanes.

Peter Bercik, another eyewitness, saw the officer approach, enter the

intersection and make her left turn. He said the officer did not come to a stop at the
intersection and was traveling about 30 miles per hour from the time he first saw her
vehicle until the point of impact.
Viewing the evidence in the light most favorable to the plaintiffs, the officer
traveled down Route 1 southbound quite fast, or too fast, in Ms. Doucettes view,
without emergency flashers or a siren. As she neared the intersection, she moved
from the right hand lane across the middle and left lanes into a left hand turn lane.
She remained in continuous motion, and by the time she began her left turn, had
slowed to approximately 30 miles per hour. At the time there were several vehicles
stopped facing northbound. There is no evidence that the officer saw the plaintiffs
vehicle before the accident, or at least no evidence that she saw it before it was too
late, and I do not think that a reasonable juror could infer that she did.
Gross negligence has been defined as a higher level of negligence representing

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August 21, 2002
an extreme departure from the ordinary standard of care.24 It is the functional
equivalent of criminal negligence, which is defined as failure to perceive a risk of
harm 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 that
situation.25 The words willful or wanton are not ordinarily used to describe a form
of negligence, but where they are, as here, they refer to a lack of care involving a
conscious indifference to consequences in circumstances where probability of harm
to another is reasonably apparent, an I-dont-care-a-bit-what-happens attitude.26
They imply a degree of negligence higher than gross negligence. Summary judgment
is appropriate only if the evidence viewed in the light most favorable to the plaintiff
will not support a jury finding of either gross negligence or willful or wanton
negligence.
When the officer reached the intersection, she had slowed down to about 30
miles per hour. She looked at the northbound traffic, saw cars stopped and thought
the intersection was clear to cross. While she may have been negligent and exercised
mistaken judgment, I do not think a reasonable juror could conclude that her conduct
amounted to gross negligence, or willful or wanton negligence, which proximately
caused the accident. Therefore, summary judgment will be granted to defendant
Reinoehl on this ground as well. The issue of Louise Pauleys alleged contributory

24

Browne v. Robb, 583 A.2d 949, 953 (Del. 1990).

25

Jardel Co., Inc. v. Hughes, 523 A.2d 518, 530 (Del. 1987); 11 Del. C. 231(d).

26

McHugh v. Brown, 125 A.2d 583, 586 (Del. 1956).

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C.A. No. 99C-06-030
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negligence will be addressed in a separate order.
THEREFORE, the State defendants motion for summary judgment is
granted, subject to the State tendering to the Pauley plaintiffs all of the remaining
self-insurance. Defendant Reinoehls motion for summary judgment is granted.
IT IS SO ORDERED.

_________________________
Resident Judge
oc:
cc:

Prothonotary
Order Distribution

18