OPINION

JURDEN, J.

INTRODUCTION

Before the Court is Defendant Christina School District's Motion for Summary Judgment. Jamon Smith ("Plaintiff"), through his mother, Cymondria Smith, filed this suit against Defendant alleging that Defendant and its staff were negligent in their supervision of Plaintiff. Plaintiff suffered an injury to his finger while riding a tricycle at school. Defendant argues that the Delaware State Tort Claims Act ("DSTCA") provides Defendant sovereign immunity from Plaintiff's negligence claim, and thus Defendant is entitled to summary judgment. For the reasons that follow, Defendant's Motion for Summary Judgment is DENIED.

FACTS

Brennan School ("Brennan") is a state public school in the Christina School District and one of many locations for the Delaware Autism Program. ("DAP").1 In September of 2009, Plaintiff, a six-year-old non-verbal autistic child, was a student at Brennan.2 Brennan typically limits its class sizes to four to six students, but for physical education class ("gym class"), two classes are combined to form one.3

During gym class on September 16, 2009 Plaintiff was riding a tricycle around the gym. Although no written protocol exists concerning the staff-to-student ratio in gym class, generally a para-educator from each class and a gym teacher are present to supervise the students.4 On the day Plaintiff was injured, one gym teacher, two para-educators, and a substitute teacher were present in the gym supervising between eight to ten students.5

At the beginning of the gym class, Addison Blatchford, an adaptive physical education teacher at Brennan, helped Plaintiff select an intermediate-sized adult tricycle that Blatchford described as appropriate for Plaintiff's size.6 In addition to Blatchford, two para-educators, Brooke Cleary and Wilma Torres, were also present in the gym supervising the children. During class, Cleary and Torres were helping children who could not ride bicycles because of their physical handicaps walk around the gym.7 Blatchford stood at one end of the gym conversing with a substitute teacher, Janis Marcozzi.8 As Plaintiff was riding his tricycle around the gym he amputated the tip of his left middle finger below the nail bed.9 Although four employees were present when the injury occurred, none of them witnessed Plaintiff's mishap.10

Although doctors were able to reattach Plaintiff's fingertip, he suffered from post-surgical complications that required multiple surgeries and in-patient hospitalization.11 As a result, Plaintiff was unable to return to school full-time until January 4, 2010.12 Plaintiff subsequently filed this lawsuit alleging, inter alia, that the Brennan staff's inattention amounts to negligence and caused Plaintiff's injuries.

THE PARTIES' CONTENTIONS

Defendant has moved for Summary Judgment arguing that the DSTCA13 bars any claim by Plaintiff because it provides the State, its entities, and employees immunity from liability provided certain criteria are met.14

Plaintiff contends that, notwithstanding the provisions of the DSTCA, further reading of the statutory language in the State Tort Claims Act in Title Ten, Chapter Forty establishes that Defendant does not have immunity. Specifically, Plaintiff cites 10 Del. C. § 4012, which states:

Plaintiff contends that because Defendant negligently failed to exercise its duty to supervise and provide a safe tricycle for Plaintiff to ride, Defendant is not immune from liability under the DSTCA. Plaintiff's statutory interpretation of the DSTCA is incorrect.15 Sections 4010-4013 of Title Ten, Chapter Forty of the Delaware Code apply to County and Municipal Tort Claims, and Defendant is a State entity. However, as explained below, a genuine issue of material fact remains for trial.

THE STANDARD OF REVIEW

When a party moves for summary judgment, the Court's task is to determine whether genuine issues of material fact remain for trial.16 The Court will only grant summary judgment if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.17 If, however, the record developed through discovery reveals that material facts are in dispute or if the record has not been thoroughly developed to allow the Court to apply the law to the facts of the case, then summary judgment must be denied.18

Initially, the moving party bears the burden of "demonstrating that the undisputed facts support his claim for dispositive relief."19 Should the moving party properly support its motion, "then the burden shifts to the non-moving party to demonstrate that material issues of fact remain for resolution by the ultimate fact-finder and/or that the movant's legal arguments are unfounded."20 As such, "Rule 56(c) mandates entry of summary judgment against a party who fails to establish the existence of an element essential to that party's case."21

DISCUSSION

The General Assembly enacted the DSTCA to codify the "common law principles of sovereign immunity" in Delaware.22 The General Assembly sought to protect public officials or employees from lawsuits that might hamper their ability to exercise discretion while performing official duties.23 The first line of protection for the State and its agencies is that neither party can be sued without its consent.24 Despite this shield, the General Assembly "can waive sovereign immunity by an Act that clearly evidences an intention to do so."25 Carrying insurance coverage for risks or losses acts as a waiver on behalf of the State to the extent of the coverage available.26

Defendant, as a public school district, has immunity from liability under the DSTCA.27 To overcome this immunity, Plaintiff must show that: "(1) the State has waived the defense of sovereign immunity for the actions mentioned in the complaint; and, (2) the State Tort Claims Act does not bar the action."28 Here, Defendant has insurance; therefore, Plaintiff has satisfied the first prong.29

Plaintiff's next hurdle requires him to establish the absence of the following elements under 10 Del. C. § 4001 of the DSTCA to proceed: (1) the action was discretionary in nature; (2) the action was done in good faith; and (3) the action was done without gross or wanton negligence.30 The dispute between Defendant and Plaintiff with respect to this Motion centers on two portions of the Act: whether Defendant's acts were discretionary and whether Defendant's acts were done without gross or wanton negligence.

In the Complaint, Plaintiff alleged ordinary negligence on the part of Defendant.31 Defendant answered, and then filed the instant Motion for Summary Judgment. In Lee v. Johnson, the defendant filed a Motion to Dismiss arguing that the DSTCA precluded liability because the plaintiff alleged only ordinary negligence. The Court in Lee noted that the plaintiff bears the burden of "alleging circumstances that would negate the existence of one or more of these . . . elements of immunity [from Section 4001]."32 In Lee, the Court determined that insufficient facts were pled to meet the pleading requirement because an allegation of ordinary negligence is insufficient to establish liability under the statute.33

Here, Plaintiff has alleged ordinary negligence in the Complaint.34 Because Plaintiff alleges only ordinary negligence, had Defendant filed a Motion to Dismiss (as the defendant in Lee did), dismissal would have been proper. However, the facts of Lee differ from this case because the parties here have conducted and completed fact discovery. The record developed during discovery establishes that a genuine issue of material fact exists as to whether the acts of the Defendant were: (1) discretionary; (2) done in good faith; and (3) done without gross and wanton negligence. Thus, Defendant is not entitled to judgment as a matter of law.

Conclusion

For the foregoing reasons, Defendant's Motion for Summary Judgment is DENIED.

IT IS SO ORDERED.