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Smith v. Christina School District, 2011 WL 5924393 (Del. Super.).

The Delaware Superior Court denied defendant, Christina School District's Motion for Summary judgement. Parent brought suit on behalf of a minor plaintiff 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 argued it was immune from suit under the Tort Claims Act. The Court explained that defendant, as a public school district, has immunity from liability under the Act. In order to overcome the immunity, plaintiff must show that the state waived the defense of sovereign immunity for the actions mentioned in the complaint and that the Act does not bar the action. The Court found that defendant waived sovereign immunity because it had insurance. However, plaintiff was also required to establish the absence of the following elements under the Act: the action was discretionary in nature, the action was done in good faith and the action was done without gross or wanton negligence. Although plaintiff's complaint only alleged ordinary negligence, the Court denied summary judgment because the record established during discovery created a genuine issue of fact as to whether defendant's acts were discretionary, done in good faith and done without gross and wanton negligence.

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