Lewandowski v. City of Wilmington, N17C-01-337 AML

On Jan. 21, 2015, plaintiff Jacquie Lewandowski tripped and fell in Rodney Square when her shoe caught on remaining underpinnings of a bench that had been removed from the sidewalk; she sustained multiple injuries.
Lewandowski sued the City of Wilmington in tort, alleging the City (or its independent contractor) left bench remnants on the sidewalk for an appreciable time without removing them or warning pedestrians.
The City moved to dismiss under Superior Court Civil Rule 12(b)(6), invoking immunity under the Delaware Municipal Tort Claims Act (10 Del. C. §§ 4010–4013), specifically § 4011(b)(6) (defects in sidewalks).
Lewandowski argued three exceptions: the facts fall outside § 4011, the City’s affirmative act (removal leaving remnants) is not covered, and § 4012(2) (liability for construction/operation/maintenance of public buildings/appurtenances) applies.
The Court accepted plaintiff’s well-pleaded facts as true for the motion-to-dismiss standard but concluded the Act’s broad immunity bars the claim and denied plaintiff’s alternative request to compel pre-suit information about who removed the bench.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Act bars Lewandowski’s tort claim for injuries caused by bench underpinnings left on a sidewalk	The facts do not fit the listed activities in § 4011; removing a bench (affirmative act) that creates a hazard is not covered; alternatively § 4012(2) applies because the area serves as a transportation hub, not outdoor recreation	§ 4011 grants broad immunity for defects or lack of repair in sidewalks; § 4011(b) examples are not limiting and cover both affirmative acts and failures to act; § 4012(2) applies narrowly to public buildings/appurtenances and not to a park/sidewalk	The claim is barred by the Act; § 4011 immunity applies and § 4012(2) does not create a valid exception
Whether the City must produce pre-suit information about who removed the bench	Plaintiff seeks identification of City employees or independent contractors who removed the bench to determine potential defendants	City contends it need not provide pre-litigation discovery and a successful dismissal motion relieves it of discovery obligations	Court refused to order discovery; dismissal renders plaintiff’s pre-suit information request unwarranted

Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531 (Del. 2011) (pleading standard: accept well-pleaded facts and reasonable inferences on a motion to dismiss)
Savor, Inc. v. FMR Corp., 812 A.2d 894 (Del. 2002) (on pleading standards and interpretation principles)
Heaney v. New Castle Cty., 672 A.2d 11 (Del. 1995) (interpreting the scope of municipal immunity under the Act)