Chapter 40

§ 4001 Limitation on civil liability. Except as otherwise provided by the Constitutions or laws of the United States or of the State of Delaware, as the same may expressly require or be interpreted as requiring by a court of competent jurisdiction, no claim or cause of action shall arise, and no judgment, damages, penalties, costs or other money entitlement shall be awarded or assessed against the State or any public officer or employee, including the members of any board, commission, conservation district or agency of the State, whether elected or appointed, and whether now or previously serving as such, in any civil suit or proceeding at law or in equity, or before any administrative tribunal, 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, or anyone over whom the public officer, employee or member shall have supervisory authority; (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; provided that the immunity of judges, the Attorney General and Deputy Attorneys General, and members of the General Assembly shall, as to all civil claims or causes of action founded upon an act or omission arising out of the performance of an official duty, be absolute; provided further that in any civil action or proceeding against the State or a public officer, employee or member of the State, the plaintiff shall have the burden of proving the absence of 1 or more of the elements of immunity as set forth in this section. 61 Del. Laws, c. 431, §  1 ; 66 Del. Laws, c. 348, §  1 ; § 4002 Indemnification of public officers and employees. In addition to the right of representation provided for in § 3925 of this title, any public officer, employee or member who, but for the application of any provision of the Constitutions or laws of the United States or the State of Delaware to the contrary, would be entitled to immunity in accordance with § 4001 of this title, shall be indemnified by the State against any expenses (including attorney’s fees and disbursements), judgments, fines and costs, actually and reasonably incurred by such public officer, employee or member in defending against the action, suit or proceeding giving rise thereto. 61 Del. Laws, c. 431, §  1 ; § 4003 Political subdivisions; limitations on liability. Any political subdivision of the State, including the various school districts, and their officers and employees shall be entitled to the same privileges and immunities as provided in this chapter for the State and its officers and employees; provided that the public officers and employees of any such political subdivision shall only be indemnified if the governing body of the subdivision shall expressly so provide, and then only to the extent that the subdivision shall appropriate all funds necessary therefor. 61 Del. Laws, c. 431, §  1 ; § 4004 Procedure for establishing right to indemnification. The right to indemnification provided for in § 4002 of this title shall automatically obtain upon the final determination of any court or administrative tribunal of competent jurisdiction that no claim or cause of action existed, or, but for the application of the Constitutions or laws of either the United States or the State of Delaware, that no such claim or cause of action would have existed, or upon a verdict or ruling in favor of the public officer, employee or member. If a court or administrative tribunal shall determine that no right to indemnification exists because of the absence of 1 or more of the elements of immunity set forth in § 4001 of this title, said determination shall be final and binding at such time as any and all rights of appeal from the decision giving rise to such determination shall have been exhausted. If, for whatever reason, including a settlement agreed upon by the parties, the court or administrative tribunal having jurisdiction shall fail or refuse to make the determination required by this section, then the indemnification shall only be granted as to public officers, employees or members of the State upon the affirmative recommendation of the appropriate department head, or a majority of the members of the governing body of the board, commission or agency, whichever shall apply, and the concurrence of the Governor and the Attorney General or their designees. Any political subdivision of the State which shall hereafter provide indemnification as authorized by this chapter shall establish its own procedure for determining eligibility for its officers and employees in the absence of the determination of a court of competent jurisdiction. 61 Del. Laws, c. 431, §  1 ; § 4005 Authorization to purchase liability insurance. The State or any of its departments, agencies, boards, commissions or political subdivisions are hereby authorized to obtain from funds appropriated for such purpose a policy or policies of insurance sufficient to provide coverage for its public officers, employees or members which is coextensive with the standards for indemnification as provided for in this chapter. No public officer, employee or member shall be entitled to indemnification under this section for any act or omission, not otherwise protected herein, any applicable policy of insurance to the contrary notwithstanding. 61 Del. Laws, c. 431, §  1 ; § 4006 Exclusion on civil liability limits for claims against public schools involving sexual abuse of a child. (a) The privileges and immunities from liability under §§ 4001 and 4003 of this title do not apply to a public school, or an officer or employee of the public school, in a civil lawsuit for damages based on sexual abuse of a child by an adult employee or agent of the public school. (b) A civil cause of action for sexual abuse of a child under this section must be based on sexual acts that would constitute a criminal offense under the Delaware Code. 83 Del. Laws, c. 411, § 1 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } } § 4010 Definitions. As used in this subchapter, unless the context otherwise indicates, the following words shall have the following meanings: (1) “Employee” means a person acting on behalf of a governmental entity in any official capacity, whether temporarily or permanently, and whether with or without compensation from local, state or federal funds, including elected or appointed officials, volunteer firefighters and rescue squad members where the rescue squad receives full or partial financial support from political subdivisions or from the State, but the term “employee” shall not mean a person or other legal entity acting in the capacity of an independent contractor under contract to the governmental entity. (2) “Governmental entity” means any municipality, town, county, administrative entity or instrumentality created pursuant to Chapter 8 of Title 22 or Title 9, any municipality created by a special act of the General Assembly, any housing authority created pursuant to Chapter 43 of Title 31, any parking authority created pursuant to Chapter 5 of Title 22, any municipal business improvement district authority created pursuant to Chapter 15 of Title 22 and all registered volunteer fire companies and volunteer rescue squads. 62 Del. Laws, c. 124, §  2 ; 69 Del. Laws, c. 328, §  2 ; § 4011 Immunity from suit. (a) Except as otherwise expressly provided by statute, all governmental entities and their employees shall be immune from suit on any and all tort claims seeking recovery of damages. That a governmental entity has the power to sue or be sued, whether appearing in its charter or statutory enablement, shall not create or be interpreted as a waiver of the immunity granted in this subchapter. (b) Notwithstanding § 4012 of this title, a governmental entity shall not be liable for any damage claim which results from: (1) The undertaking or failure to undertake any legislative act, including, but not limited to, the adoption or failure to adopt any statute, charter, ordinance, order, regulation, resolution or resolve. (2) The undertaking or failure to undertake any judicial or quasi-judicial act, including, but not limited to, granting, granting with conditions, refusal to grant or revocation of any license, permit, order or other administrative approval or denial. (3) The performance or failure to exercise or perform a discretionary function or duty, whether or not the discretion be abused and whether or not the statute, charter, ordinance, order, resolution, regulation or resolve under which the discretionary function or duty is performed is valid or invalid. (4) The decision not to provide communications, heat, light, water, electricity or solid or liquid waste collection, disposal or treatment services. (5) The discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalines, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water, except as provided in § 4012(3) of this title. (6) Any defect, lack of repair or lack of sufficient railing in any highway, townway, sidewalk, parking area, causeway, bridge, airport runway or taxiway, including appurtenances necessary for the control of such ways including but not limited to street signs, traffic lights and controls, parking meters and guardrails. Paragraphs (b)(1) to (6) of this section to which immunity applies are cited as examples and shall not be interpreted to limit the general immunity provided by this section. (c) An employee may be personally liable for acts or omissions causing property damage, bodily injury or death in instances in which the governmental entity is immune under this section, but only for those acts which were not within the scope of employment or which were performed with wanton negligence or wilful and malicious intent. 62 Del. Laws, c. 124, §  2 ; 70 Del. Laws, c. 186, §  1 ; § 4012 Exceptions to immunity. 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. (2) In the construction, operation or maintenance of any public building or the appurtenances thereto, except as to historic sites or buildings, structures, facilities or equipment designed for use primarily by the public in connection with public outdoor recreation. (3) In the sudden and accidental discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalines and toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water. 62 Del. Laws, c. 124, §  2 ; § 4013 Limitation on damages. (a) In any action for damages permitted by this subchapter, the claim for and award of damages, including costs, against both a political subdivision and its employees, shall not exceed $300,000 for any and all claims arising out of a single occurrence, except insofar as the political subdivision elects to purchase liability insurance in excess of $300,000 in which event the limit of recovery shall not exceed the amount of the insurance coverage. (b) Any governmental entity may settle claims filed against it pursuant to § 4012 of this title, in accordance with procedures duly promulgated by its governing body. (c) Any political subdivision may enact a notice requirement by ordinance, so long as said notice requirement does not bar suit if notice is given within 1 year of occurrence. 62 Del. Laws, c. 124, §  2 ; 64 Del. Laws, c. 443, §  1 ; Delaware General Assembly Judicial Executive Contact Twitter Help function submitSearch() { if (!window.location.origin) { window.location.origin = window.location.protocol + "//" + window.location.hostname + (window.location.port ? ':' + window.location.port : ''); } keyword = document.getElementById('srch-term').value; window.location.href = "/Search?query=" + keyword; } document.getElementById('srch-term').onkeyup = function (e) { if (e.keyCode == 13) { submitSearch(); } }