*1 1354 Co., 925, Del.Supr., Ins.

Auto. 443 A.2d policy.3 926 tected If such UM/UIM (1982). This leads to the public inevitable result result is undesirable as a matter of against that will be construed policy, Assembly the General is the proper the insurer and favor of the insured. to seek a change. Reynolds Id. forum See v. phrase Willis, “all damages” reasonably Del.Supr., 760, (1965). em 763 209 A.2d punitive damages. braces See Old Securi Accordingly, Superi- ty Casualty Clemmer, Miss.Supr., Co. v. is or Court The matter REVERSED. 781, (1984) (“[I]nsurance 455 So.2d 783 Superior REMANDED to the Court with company’s liability damages arising ‘for all declaratory instructions to judg- enter a injury’ bodily punitive includes dam opinion. ment in conformance with this ages.”); Mazza v. Medical Mut. Ins. Co. of Carolina, 621, North 311 N.C. 319 S.E.2d

217, (1984) (from viewpoint, 223 laymen’s policy covering damages”

insurance “all in punitive coverage damages);

cludes cf. Telephone v. Overman Southwestern Bell

Co., 419, Mo.App., 675 S.W.2d 425 (term damages” “all as used statute COUNTY, DELAWARE, polit- SUSSEX punitive damages); includes see also Val subdivision ical of the State Dela- ley Forge F.Supp. Ins. v. Jefferson, Co. ware, Below, Appellant, Defendant 502, (D.Del.1986) (policy covering “damages bodily injury property damage” punitive damages read to include Blake, Jr., Below, Frank Defendant law). contrary under Delaware Absent public policy grounds, given foregoing v. principle interpretation, Jones is entitled Stanley MORRIS, E. Plaintiff coverage determination to a that UM/UIM Below, Appellee. punitive damages. embraces Supreme of Delaware. Court

C. 19, May 1992. Submitted: 26, Decided: June 1992. Turning public poli to the issue of cy, analysis Rehearing July 1992. a brief of our law Denied coverage support function of UM/UIM coverage pu that such

conclusion embraces damages. recognized

nitive We have “public policy [underlying in UM/UIM making is achieved available

surance] coverage that liabili mirrors [an insured’s] insurance_”

ty v. Horizon As- Frank Co., Del.Supr., 553 A.2d

surance (1989); see also Holden v. Aetna Cas- Co., Surety Del.Supr., 560 A.2d

ualty & held We also have coverage punitive dam-

liability includes Inc., On-Deck, Del.Supr.,

ages. Whalen it fol- public poli- from contractual and

lows both standpoints compensation

cy such pro- to those under Delaware law

afforded course, express opinion whether lar case. Of no damages particu- punitive in this warranted

Nancy Chrissinger (argued), E. and Mi- Silverman, Tybout, chael I. Redfearn & Pell, Wilmington, appellant. Guerke, Parkowski, Barry I. Noble & Guerke, P.A., Dover, appellee. YEASEY, C.J., HORSEY, Before HOLLAND, JJ., MOORE, WALSH constituting the Court en Banc. MOORE, Justice. appeal Superior Court in-

This scope immunity conferred volves the county official under the Act, Municipal Tort Claims Del.C. (the “Act”), agency county. relationship that official to the (“Morris”), Stanley Morris appellee, The E. (“Sussex”), County, Delaware sued Sussex Blake, (“Blake”),1 a Sussex and Frank Jr. constable, Morris sustained being custody con- in Blake’s while automobile to veyed in Blake’s own (the Hospi- Hospital “State Delaware State involuntary commit- tal”) pursuant to an it was claims ment order. Sussex immunity, and governmental entitled party appeal. Blake is not a to this 1. Mr. Blake, event, agent. Hospi- was not its Blake arrived at Milford Memorial 4- general against driving family tal his own car—a 1981 returned a verdict

Sussex, favor, $100,000. Accompanying Blake and in Morris’ door Oldsmobile.2 his brother This appeals, contending also were and father-in-law. that was *3 $15,130 the entitled was not first time that Blake had taken to remittitur of connec- Hospital. personal injury protection tion with certain Morris State Blake hand- (“PIP”) front,3 Morris’ hands in coverage which Morris entitled cuffed and shack- was legs. to led his Morris sat in the seat of receive under Blake’s insur- back automobile car, fastened, In Blake’s with his seat belt and opinion fully ance. our the evidence supports the door locked. The back doors of Blake’s jury’s finding that Blake was agent. any way. Sussex’s car had been modified in Ministerial acts of the Therefore, here, car, type police unlike a the rear door performed by Blake and the use fully operational. of his locks and handles were automobile under the facts of this case, exclude his conduct from During trip Morris stated several under the Act. the trial court’s fail- While that he wished he After times were dead.4 grant erroneous, ure to the remittitur was statements, making these Morris said he it was harmless under all of the circum- Then, going nap. to take a unex- was Accordingly, stances. we affirm. belt, pectedly, Morris unfastened his seat door, door, opened

unlocked the and car moving jumped out of the car. There was I. evidence, accept, which the could A. epi- experiencing psychotic Morris was in- seriously sode at that time. He was dispute. The essential facts are not in the jured spent over three months 16,1984, July Morris was released from On hospital undergoing operations. several Hospital, the State an institution for the permanent impairment of one He has a 45% ill, mentally day involuntary after a 12 civil foot, his limp, and is unable to return to commitment. This was Morris’ fourteenth former work construction. hospital. diag- to that He was admission being dependent. nosed as alcohol Medical B. testimony previous indicated that in his Blake, City diagnosed Sussex and hospitalizations Morris had been Morris sued (“Milford”). Summary judg- suffering psychosis, schizophrenia of Milford Moreover, Blake’s mo- underlying granted ment to Milford. paranoia. his was summary judgment granted as by affected the disease of tion for was psychosis was times, had, simple negligence, but de- allegations Morris at threat- alcoholism. motion estranged kill and himself. nied as to wantonness. Sussex’s ened to his wife 1984, granted summary judgment was July less than hours after On adequately train release, alleged again involuntarily as to its failure Morris was trial court denied Hospital equip for 72 and Blake. The committed to the State gov- summary judgment on the issues Milford Memorial hours. He was held at agency. Mor- (“Milford Memorial”) immunity and See pending ernmental Hospital Blake, A.2d 849- Del.Super., 552 Hospital. To com- ris v. transfer State transfer, again moved for sum- Sussex plete employee at Milford this Blake, this decision mary judgment after Court’s contacted one of several Memorial Del.Supr., County, responsible for trans- v. New Castle constables Sadler Sussex Superior Court patients. porting mental that, but from the rear Morris had been handcuffed in the record at some 3. 2.There is evidence that he in the front so time, asked to be handcuffed police owned a retired car that Blake during trip. would be able smoke transportation prisoners. equipped It however, unclear, whether Blake owned this that, although Mor- to us 4. Sussex's claim July car on dead, “he did not he were ris stated he wished puzzling. express any is rather suicidal threats” prior and, concluded that implic- its decision was Blake’s actions were itly therefore, again affirmed denied liability immune from under the County’s summary judg- Sussex motion for Act. Even if Blake’s actions were not dis- Blake, ment. Del.Super., cretionary, they See Morris v. Sussex contends that re- 85C-JL-15, C.A. No. 1990 WL main immunized under In the Act. our (Mar. 20, 1990) (ORDER). Ridgely, opinion equipment J. selection and Morris, the car he used to acts trial, Before Sussex filed a motion in negligent by which were found to be concerning limine admissibility of cer- jury, discretionary, were not but ministe- tain expenses medical incurred Morris. Moreover, negligent rial. use of such a claimed that Morris was motor vehicle under these circumstances eligible personal injury protection *4 immunity. divests Sussex of 10 See Del. C. (“PIP”) under Blake’s automobile insur- 4012(1). $25,000. ance in the amount of Blake’s insurance carrier coverage denied A. brought Morris suit which was subse- $15,000.5 quently settled for After ac- Superior The Court’s denials of Sussex’s

counting costs, attorney fees and summary judgment motions for turned en $9,870 settlement netted Morris which was tirely statutory on issues of construction. applied hospital towards Morris’ The bill. These purely legal questions over court, trial objection, over Sussex’s admit- which we exercise de novo review. Moses unpaid portion ted the hospital of Morris’ v. Board Education the New Castle of of bill into evidence.6 District, County Vocational Technical School trial, Supr., (1991). At the close of the 602 A.2d 63 Sussex moved Del. Thus, for a claiming Superior directed verdict we will review the that Blake Court’s agent and, was not an of decision to determine there- whether the trial fore, judge formulating applying it was not erred in liable for his or le actions. The gal Co., precepts. trial court reserved decision on Gilbert v. El Paso Del. the motion. jury Supr., The general returned a 1142 against verdict $100,000. Sussex in the amount of Sussex moved for a notwithstanding the B. or, alternative,

verdict in the for a new requires Resolution of this issue trial. The latter motion also was based on analysis of two sections of the Act. Sub agency issue. sought Sussex also ject 4011(a) exceptions, to certain Section $15,130. remittitur of Sussex contended provides, generally, im that counties are that this is the difference between the seeking mune from suit on all tort claims by amount which hospital Morris’ bill was recovery damages. 4012 of the Section ($9,870) reduced and the amount exceptions specific Act enumerates to this ($25,000). it should have been reduced general immunity. rule The activities This was the same issue the trial court in an exclusive list listed Section 4012 are upon earlier ruled in Sussex’s motion in as to which and “are the activities limine. Each of the motions was denied. Mo municipal is waived.” Fiat America, Mayor Inc. v. tors North II. Wilmington, Del. City Council

Sussex asserts that it is immune None Supr., A.2d 1066 498 any liability injuries theless, Morris’ under 4012 must be read con Section Specifically, applied the Act. Sussex claims that each case text and the facts of presented insurer had al- 5. Blake’s claimed that it was not liable 6. the bill 515,000 they ready for Morris’ since were intentional- for the settlement with accounted ly position attorney's inexplicable fees and costs. inflicted. That less Blake’s insurer $25,000, argued full amount of view of the fact that Morris had been involun- that Sussex policy, tarily Hospital coverage have committed to the State as men- under Blake’s should PIP hospital tally bill. ill. from the been deducted cliff, Blake, F.Supp. purely thereto. was decision Hedrick (D.Del.1982). and, therefore, liability immune from under 4011(b)(3) particular the Act. Section Of Superior Court found that Sussex’s importance to our decision the fact liability for Blake’s act was based equip- made no claim 4012(1), which states: any way used ment rescuers was governmental entity A shall be ex- equip- defective.7 We noted that “[t]he posed liability negligent its acts or used was incidental to the ment ... ... causing damage, property omissions bod- underlying judgment transport Sadler [to ily following injury, or death in the cir- at “There down the Id. river].” [was] cumstances: equip- claim that other no more suitable maintenance, ownership, In its (empha- ment could have been used.” Id. use of motor vehicle.... or other added). sis We concluded that there was machinery equipment whether mobile application no basis for of the Section 4012 stationary. exception because there was no “causative Morris, A.2d at 849-50. relationship equipment between the ... ... argues absolutely im- injuries [sustained]_” Id. Im- “discretionary mune under the function” plicit principle Sadler is that use *5 4011(b)(3), provision of Section which states machinery inappropriate defective or pertinent part: equipment may governmental divest a enti- (b) ti- Notwithstanding oí this ty immunity irre- under Section tle, governmental entity a shall not be 4011(b)(3). spective of Section damage re- any liable for claim which parties is con- Both assert that Sadler from: sults trolling supports position. Spe- their ^[*] ^[*] ^[*] ^[*] ^[*] ^[*] cifically, Sussex contends that Blake’s ac- tions, Sadler, performance The or failure to exer- like the rescuers’ were therefore, and, discretionary discretionary immune from perform cise or a function According liability under Section 4011. to duty, whether or not the discretion be statute, Sussex, a of discretion- or not the Blake made number abused and whether ordinance, resolution, charter, reg- transporting Morris that ary order decisions ulation, example, Blake injuries. the dis- caused his For or resolve under which Morris in the front as cretionary duty performed function or chose to handcuff and used a car with opposed to the back is valid or invalid. could be unlocked back doors that 4011(b)(3) added). (emphasis 10 Del.C. § from the inside. opened paucity helpful authority There is a “discretion reads the term interpreting provisions of the Act now 4011, far function,” in Section parties rely primarily ary as used us. Both on before immunity granted to dis County, Del.Supr., broadly. too The v. New Castle Sadler every (1989). There, extend to appellant cretionary does not A.2d 917 acts element of accidentally fell in which some injured when he over circumstance case, that Were Brandywine and struck his head on choice is involved. Falls considered dis be virtually every sued New act would some rocks. The accident victim that do not rescuers, few claiming cretionary his there are County, since Castle Practical of choice. negligent element county employees, were involve some all movement, eye an short of ly every means to re- selecting unduly hazardous human degree river, beat, some aggravating blink involves him thus or a heart move from the grant im To court’s of and choice. affirmed the trial voluntariness injuries. his We existence of upon the carry munity solely based ruling the rescuers’ decision logic, prece- up run counter river, than choice would across the rather "special mo- ownership, use of exception providing for mo- maintenance addition to an 7. In vehicles, 4012(1) excep- provides equipment." tor bile caused tion to dent, legislative here, and the clear Applying principles intent under- those we con- lying Act. While the Act does not equipment clude that Blake’s selection and precise term attach to describe acts or of the car he used to Morris were are non-discretionary functions which in na- They bearing ministerial acts. had little ture, commonly antonym used for the importance upon validity of his official “discretionary” term is “ministerial.”8 empowered conduct. Blake was as a Sus- ambiguities While the language prevent transport mentally sex ill pa- Constable to term, us formulating precise a more validity authority tients. of this is not we use “ministerial” to describe those acts entirely at issue and is distinct from which, may insignificant involve an element personal respecting decision Blake made choice, legislature but which the has not Indeed, choice of motor vehicle. insulated from immunity. legal From a many Restatement enumerates acts that standpoint, we consider actions to ordinarily are considered ministerial. One and, therefore, be ministerial in nature example prisoners.9 is the care of Id. liability. immune from Many struggled courts have to distin- recognized have We the term “dis- guish acts, subject which are cretionary governmental functions” ex- immunity, from those which are ministe- beyond tends mere decisions to in- rial and thus not immune from suit. Some clude “the manner or method selected courts have established multifaceted elabo- governmental employees discharge rate tests to make this determination. police power.” 565 A.2d at 922. inevitably pose ques- Such efforts more believe, however, We do not that this lan- they tions than answer. As one court stat- guage expansively is to be read as as Sus- ed: Indeed, sex contends. one must look to the *6 attempts grapple Judicial to with what opinion entire to understand how has a become multi-addered medusa has language interpreted this broad is to be resulted in confusion and uncertain- [sic] practice. In we found that immu- ty painfully apparent legal all too nity existed because the rescuers’ discre- scholars, and an inability part on the of tionary entirely decisions were distinct guide- courts to evolve definitive equipment. from the use of the rescue In lines .... used, words, other it was not was what but State, Vanderpool Okla.Supr., v. 672 P.2d allegedly how it was used that caused the (1983). Here, injuries plaintiff’s injuries. Morris’ attempt Rather than explicate used, were a direct result of what was terms “discretionary” as nebulous as and indisputably ill-equipped ear for the trans- “ministerial,” adopt general defini portation mentally passengers. ill of tion of “ministerial” set forth in the Re (Second) statement of Torts. An act is Finally, claim that it still Sussex’s if ministerial the “act of the in official Morris’ enjoys immunity, because way volves less in the personal decision ownership, mainte did not from the result judg matter for which vehicle, unper nance motor or use of a required bearing impor ment is has little suasive. contends that because Sussex tance the validity of the act....” sound, mechanically Blake’s car was (Second) Restatement Torts cmt. 895D § immunity exception motor to the vehicle h The distinction discre between 10 Del. C. inapplicable. statute is See tionary always and ministerial acts is one 4012(1). degree. Id. § respect implicates “opera- injury. every this 8. Ministerial acts also referred to as time of In "prisoner.” very tional." See of the term nature ed.1979). (5th Dictionary 1075 Black’s Law Although prisoner of the in the sense clearly prisoner in civil was a Morris law, criminal it is uncontroverted that he had custody. involuntarily deprived liberty been of his custody was in the of a Sussex official at the juror That is a of the Act. whether a could conclude misconstruction reasonable agent exception in that Blake was in fact an of Sussex. The motor vehicle 4012(1) jury’s regarding We find that the verdict applies when the vehicle itself is the Here, agency relationship Blake’s with Sussex instrument of the harm. could not clearly supported by the evidence. injuries were be more obvious that Morris’ improperly equipped a direct result processed application to automobile Blake used. The Act admits of constable, appointed be a him with the no under such circumstances. knowledge that he would mental Id.; Sadler, A.2d at 922. hospitals his patients, notified availabili-

ty, provided badge, him while with III. Blake, retaining power discipline authority. There is suspend or revoke his Sussex moved for a directed verdict properly dispute no the trial court ground agent Blake not its on the was jury agency, instructed the on the law injured. at the time Morris was The stan specifically jury must as what dard of from a denial of a motion review agency find in order to conclude that an for a directed verdict is whether the evi relationship the time of the inci- existed at dence and all reasonable inferences that there was dent. Under the circumstances therefrom, light can be drawn taken jury’s no error of law. The verdict non-moving party, most to the favorable by fully supported the evidence. consider raise an issue of material fact for jury. Del. Kanaga, ation Russell v. IV. Supr., 571 A.2d Post-trial Finally, the admission we address generally motions are reviewed for an medical with into evidence of Morris’ bill However, of discretion. it has been abuse $25,000 PIP cover deducting out the full post-trial held motion is direct that when eligi age claims he was for which Sussex solely weight ed of the evidence in a hospi Morris’ ble. The trial court admitted case, jury this Court is bound with a deduction tal bill into evidence supported by if verdict it is the evidence. $9,870, netted from the amount Morris Del.Supr., 401 A.2d Storey Camper, PIP claim. “disputed” the settlement of Const, 11) IV, (citing Del. art. issue, this for a remittitur on Sussex moved trial). (motion for new *7 it was denied. While the trial court which Essentially, challenges jury’s the Sussex error, under the it harmless we consider agen determination on the issue of factual circumstances. points (e.g., cy. to no error of law Sussex 21 provisions of Del.C. Under improper jury agency) instruction on law of 2118(g): but, instead, plain merely asserts that “the de- person eligible Any benefits showing of did not sustain his burden tiff (3) (2) or of subsec- paragraph in scribed agent Mr. Blake was an of Sussex that precluded (a) ... this section tion of Brief at 36. It is County_” Opening introducing into ev- and/or pleading agency questions of are well settled that damages against a in action idence but, rather, subject to absolute rules not com- damages for which those tort-feasor case. turn on the facts of individual paragraph under is available pensation de Nemours & Co. v. I.D. E.I. duPont (a) of this section (2) (3) of subsection 783, Inc., Del.Supr., 130 A.2d Griffith, reductions any elective regard to without (1957); Sawyer Estate v. Cro see also of not coverage and whether or in such (1989) (ex well, A.2d 687 151 Vt. actually recoverable. such benefits fact); agency question istence of added). (Emphasis Manage E. Henderson v. Charles Smith statute, that, under this (1989) Inc., asserts ment, D.C.App., 567 A.2d 59 for the full eligible” “PIP (same); Beckenstein v. Potter and Carri Morris i.e., $25,000. insurance, Inc., of Blake’s er, 464 A.2d 6 191 Conn. amount in- that, because responds (same). Thus, only issue before us is Morris coverage policy surer denied Any under a exclu- reconsideration of in future sion, subsequently might implicate revisiting and Morris settled the cases of the “disputed” amount, interesting claim for a statutory question lesser construction that amount which Morris netted from the turns on the intent of the General settlement should Assembly resolving be reduced from his the tension between medical allowing bills. injured by redress to those municipal agents (see torts Restatement While we do not doubt that Morris’ coun- (Second) 2d, Special Torts Note on Gov- faith, sel settled the PIP good claim in 395), p. ernmental Immunity at question do of the in- reasonableness governmental economicinterests of entities surer’s position. Blake’s insurer denied costs, curbing litigation exposure PIP ground benefits to Morris on the large damage consequent awards and the Morris’ due were to his “intention- public arising drain on resources out of and, thus, al” compensable conduct not un- insurance costs. See Fiat Motors North policy. der Blake’s Under all cir- of the America, Inc. v. Mayor and Council of here, particularly cumstances fact City Wilmington, Del.Supr., 498 Morris was involuntary then under an com- A.2d mentally person, mitment as a ill we consid- er position the insurer’s indefensible. Sus- The issues inherent in the bal- sex should not subjected have been to the ancing legislative, of this tension are potential However, costs of that situation. judicial, policy questions. As this Court regard error in this was harmless. Fiat, “only [apply] noted courts should The general returned a verdict for language the strict of the statute itself $100,000. expenses Morris’ medical totaled deciding activity whether an is immune or $54,000 approximately and, after account- Id., is not.” 498 A.2d 1067 n. 8. Accord- ing settlement, for the PIP approximately ingly, in Fiat the Court attached as an $44,000 in expenses medical were admitted appendix Opinion (including the text into evidence. We find that the trial preamble) Municipal of the $15,- court’s refusal to deduct an additional (the “Act”) originally Act Tort Claims as hospital 130 from Morris’ bill had no mate- (July enacted in 62 Del.Laws. ch. 124 jury’s rial effect on the verdict. 1979). 498 A.2d at 1068-70. The Act was legislative policy apparently based Superior Court is “reestablishing principle sovereign AFFIRMED. municipalities,” counties and citing expressed concern for the “cost YEASEY, (concurring): Chief Justice insurance, obtainable, has when [which] I concur in the holding result and the proportions unanticipated by reached local majority opinion the ministerial government multiplicity a result of the decisions made {e.g., Blake *8 against governments of lawsuits filed local car, Morris in Blake’s own which was not years.” in recent Id. at 1068-69. specially equipped, and to handcuff Morris front) “discretionary were not in 1979 the As- functions” It is clear that General meaning judicial within the sembly 10 intended to overrule certain Del.C. 4011(b)(3). agree I dispense also with the that this case is decisions in order “to § distinguishable relatively govern- from this Court’s common law distinction between recent decision in activities proprietary Sadler v. New Castle mental activities In County, Del.Supr., municipal 917 If entities.” Id. at indistinguishable policy, legislative the instant ease were implementing Sadler, contends, gov- against permitted from as the dissent suits expressly we Act aris- question negligence {e.g., would have to consider a which ernmental entities or use argued ing or instant maintenance “ownership, was not briefed out of machin- vehicle, other any case—whether or not to overrule Sadler. ... or motor Happily, ery 10 Del.C. equipment_”). the facts of this case do not re- or 4012(1). quire overruling us to consider Sadler. §

1362 4012(1) liability discretionary It has held that the is the been basis here, depends gen 565 function test under the FTCA but it was not in See Sadler. here, erally on whether the act or omission oc as well A.2d at 922. What is at issue policy planning or level or wheth curred at proper construction is the See, operational er it occurred at an level. 4011(b)(3) immunizes 10 Del.C. which § States, 15, 346 e.g., Dalehite v. United U.S. liability municipalities from counties and 34, 956, 967, (1953); 73 97 L.Ed. 1427 S.Ct. attach under Sec- which would otherwise U.S., (9th Cir.1983), v. 696 F.2d 1229 Nevin if results from ... tion 4012 the claim “... denied, 815, 70, 464 U.S. 104 S.Ct. 78 cert. to exercise or performance or failure also, L.Ed.2d 84 Restatement See discretionary perform duty, function or (Second) 895B, p. d at Torts comment § discretion be whether or not Yet, (re function”). 403 “administrative abused....” suggest that actions which do some cases majority agree I with the that Blake’s planning or dignity not rise to the fall outside reasonable activities here may “discretionary functions” decisions be “discretionary definition of function” with- See, e.g., the FTCA. United States under Yet, meaning of the statute. as the in the Empresa Aerea Rio v. S.A. de Viacao notes, majority opinion the term “discre- Airlines), 467 U.S. (Varig Grandense antonym tionary” and its “ministerial” are (1984) (dis L.Ed.2d 104 S.Ct. 81 660 explicated. need not I “nebulous” and be mentioned); tinction not Downs v. United agree majority opinion with the likewise (6th Cir.1975) States, 522 F.2d that efforts some courts to establish rejected be (planning/operational level test guidelines proper to divine the tests making judg cause “status of the official meaning murky concepts of these have led a sufficient test for deter ment” was “not to frustration. employee’s mining government whether proper If case arise in the fu- should exception_ Rath- actions are within upon to ture where we would be called question ... is whether er the basic scope the term “discre- reexamine the employee are judgments of a Government function,” may well consider tionary Congress quality’ of ‘the nature Assembly intended to whether the General review.”); beyond judicial put intended to scope depart embrace States, F.Supp. Blessing v. United exception as found “discretionary function” (the 1160, 1173(E.D.Pa.1978) “planning/op (“FTCA”), Act in the Federal Tort Claims distinction, may instructive as erational 2680(a), lan- which contains 28 U.S.C. level, ex can become be on a theoretical Delaware Statute. guage similar to the applied to con ceedingly problematic when immunity in a case in- grants The FTCA States, facts”); Bradley v. United crete volving: (W.D.Tenn., W.D. F.Supp. “is (a) 1985) (continued an act or the distinction Any claim based use of the most propriety in that employee questionable of an of the Govern- of omission care, pronouncement ment, exercising Supreme due in the execu- recent Court function ex discretionary on the regulation, [Varig a statute or whether tion of ] test”), mention the even to regulation ception fails such statute or be val- or not (3rd U.S., F.2d 868 id, per- aff'd, Pooler upon the exercise or or based Cir.1986). to exercise or or the failure formance perform a function res- held that the This Court *9 agency or part a federal on the of duty victim the cuers’ decision to Government, whether of the employee up the cliff than rather across the river be involved not the discretion because “discretionary function” was a abused. include within legislature intended to “the immunity not Act’s body scope case law of the supplied). The of the (Emphasis function clear, a to undertake exactly but it the decision is not the FTCA under facie, immunity prima Act’s if may wish to consult body of law we [T]he is a selected method to the manner or extends in future cases. presented issue is the governmental the employees to dis- tion irrespective of charge police power.” 4011(b)(3).” the 565 A.2d proposition at 922 Were such a to be (emphasis supplied). today truly implicit in I We hold and think it is not, Sadler would be in direct “op- decisions were “ministerial” contradiction and, therefore, unequivocal language to the erational” the statute. immune. majority attempts As the notes and then argue One could also that the decision of distinguish (unsuccessfully view, in my the rescuers in Sadler was “ministerial” or through self-fulfililng the use of defini- “operational.” tions), provisions 4011(b) the of section unnecessary It is analyze pre- for us to ” grant immunity “notwithstanding the cisely the body current of law under the specific exceptions of section 4012. Ac- FTCA or to decide if that amorphous judi- cordingly, damage where a claim arises (or gloss cial any authority) per- other performance from the perform or failure to in determining suasive whether Sadler discretionary function, governmental approved, should be overruled or limited. immune, entity is regardless of whether open, view, Those issues are my left for exceptions of the enumerated in sec- day. another tion 4012 are satisfied. 10 Del.C. 4011(b). Here, holding that Blake’s HORSEY, Justice, dissenting: negligent acts were discretionary would 16, 1984, July On plaintiff E. Stanley mandate immunity, regardless of whether Morris, subject involuntary to a 72-hour those acts involved a motor vehicle under commitment for alcohol related ill- mental 4012(1). section ness, handcuffed, while feign- shackled and Second, give rather than effect to the ing sleep in the back County seat of Sussex plain meaning of statutory the crucial car, Constable Frank Blake’s surprised term, “discretionary,” majority the resusci Blake undoing seatbelt, unlocking tates the common law that this statute was door, the hurling himself out onto the specifically abrogate. intended to Fiat Motors highway while travelling the car was at Am., Mayor Inc. v. and Council N. approximately forty per miles hour. Not Wilmington, Del.Supr., surprisingly, seriously injured. Morris was (1985) (“It duty is the Court’s Following trial, found defendant- interpret written, the Act as it is rather appellant County liable to Morris in perpetuate than theories or views which $100,000 the amount negligence the may previously expressed by have been agent of its allowing attempt Morris to Court.”) majority conjures Thus the result, suicide. In affirming this bizarre (a term present “ministerial” term nowhere majority makes at least two fundamen- statute) antonym as an to discretion tal statutory errors of construction. ary, and then finds all Blake’s acts to be First, majority unnecessarily confus- According ministerial in nature.1 to the es the interaction of 10 Del. C. 4011 and §§ opaque portion of the Restatement com and relies v. Sadler New Castle mentary adopted by majority, ministe (1989), County, Del.Supr., 565 A.2d 917 rial acts are those where “the matter for authority doing its so. the ma- required has little bear states, jority “Implicit in prin- is the ing importance upon validity ciple inappropriate However, that use of defective or holding act....” while machinery equipment may gov- definition, divest a Blake’s acts satisfied this entity ernmental majority explain under Sec- fails how matter proposed dichotomy protect governmental 1. I find of the concur local services and to ex rence, i.e., policy-making opera immunity beyond merely between tend those activities acts, City tional to the extent that it is more than for which insurance is unavailable. Cf. semantics, unhelpful contradictory leg Wilmington Spencer, Del.Supr., to be 391 A.2d 199 Motors, (1978) (opinion year islative intent. Fiat 498 A.2d at 1067. issued less than one before preamble legislature expressly Municipal Tort enacted Tort Claims Act to *10 Act, decisions). appendix Claims as set out in full in to I would there reverse recent court Motors, legislative Fiat makes clear the intent to overrule Sadler. fore not findings by the as to particularized required was of the rescue no judgment which i.e., negligently Sadler, transport of Blake’s acts caused in how to which workers alleg- any greater bearing impor- holding injuries, had Morris’ validity More- discretionary tance of their acts. and edly negligent act was over, definition to I find the Restatement must result in reversal. therefore immune exactly it The essence of have backwards. negli- despite the fact that Blake’s choice, right to be discretion is performance in the gent actions occurred act, is, authority wrong; to that where discretion, undeniably left to his of duties act, independent validity of the are that the matters over majority holds of the correctness of the chosen manner re- Blake exercised his discretion sense would execution of the act. Common way quired so little in the therefore indicate that and there- be classified as “ministerial” to authority to acts for which an actor’s I hold “discretionary.”2 would fore not particular dependent upon is not choose man- selecting in both the that Blake’s acts option he selects. transporting and secur- ner and method of in Restate- I find a later sentence inseparable and discretion- ing Morris were enlightening: “Ministerial ment to be more immunity un- ary, subject to and therefore employ- by officers and acts are those done County Municipal Tort Claims der or- required carry to out the ees who statute, seq. et Sadler v. 10 Del.C. § or to administer the law with ders of others A.2d Del.Supr., 565 County, New Castle where, when, how or little choice as to Therefore, I would reverse their acts are to under what circumstances respectful- I “deep pocket” judgment. this Torts, (Second) Restatement be done.” ly dissent. n added). 895D, (emphasis h. comment undisputed establishes that record safely Blake was directed destination; the manner and

Morris to his task, particu- performing this

method of Morris,

lar, left entire- securing was one to discretion. Even were

ly to Blake’s regarding Blake’s decision

concede that transporta- for the equip his vehicle how WATSON, Commissioner Robert J. some- such as Morris was patients tion of Department of Corrections Delaware fact that discretionary (despite the how not Guessford, Cathy Be- Defendants limiting guidelines County had no low, Appellants, surely regard), in this Blake’s discretion rehandcuff Morris fatal decision to Blake’s BURGAN, Acting Ricky discretionary. Plaintiff front was D. in the Below, Appellee. granted Morris’ authority, Blake within his his hands handcuffed with request to be of Delaware. Supreme Court back, front, his so and not behind cigarette. Morris could smoke 1992. June Submitted: testimony that it was undisputed 2, 1992. July Decided: allowing passengers those experience that to calm requested tended who so to smoke kind precisely the Is this not

them down. which, negligent, matter how act no “discretionary”? Ab- commonly call

would Blake, Morris would

sent this decision injure himself. With have been able testimony expert to establish holding regarding to resort majority's ris had I find the negli- judgment was hindsight Blake's acts to be judgment entailed Blake's level of gent. light that Mor- of the fact particularly ironic