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State Department of Transportation v. Baxter11/27/2002
Submitted: October 28, 2002
ORDER
This 27th day of November 2002, it appears to the Court that:
(1) The defendant-appellant, State of Delaware Department of Transportation, filed an appeal from the Superior Court's September 6, 2002 order denying DelDOT's motion for summary judgment. Because DelDOT's appeal is from an unappealable interlocutory order, it must be DISMISSED.
(2) On April 18, 2000, the plaintiff-appellee, Dana Baxter (Schewe), filed a personal injury action in the Superior Court based on injuries she sustained when she was hit by an object thrown from a mowing apparatus operated by DelDOT while her vehicle was stopped at an intersection in Newark, Delaware. DelDOT subsequently filed a motion for summary judgment on the grounds that it was immune from suit because sovereign immunity had not been waived and that Schewe would not be able to prove at trial that it had acted with "gross or wanton negligence." The Superior Court denied DelDOT's motion, determining, first, that there were material issues of fact in dispute regarding the nature of the mowing apparatus in use at the time of the accident and, second, that whether DelDOT had acted with gross or wanton negligence was a jury issue.
(3) On October 16, 2002, the Clerk issued a notice directing DelDOT to show cause why this appeal should not be dismissed pursuant to Supreme Court Rule 29(b) for failure to comply with Supreme Court Rule 42 when taking an appeal from an apparent interlocutory order. On October 28, 2002, DelDOT filed a response to the notice to show cause. In its response, DelDOT argued that the Superior Court's September 6, 2002 order is appealable as a final order under the collateral order doctrine.
(4) The collateral order doctrine only applies to "that small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."
(5) In this case, the Superior Court's order denying DelDOT's motion for summary judgment is not appealable as a collateral order because it did not determine a "claim of right" with respect to DelDOT. Specifically, the Superior Court did not determine that the doctrine of sovereign immunity did not apply; it merely decided that the issue was not ripe for determination because there were material issues of fact with regard to sovereign immunity that remained in dispute. On the record before us, we cannot say that the Superior Court abused its discretion in so deciding. Thus, because this Court lacks jurisdiction to hear DelDOT's interlocutory appeal, it must be dismissed.
NOW, THEREFORE, IT IS ORDERED, pursuant to Supreme Court Rule 29(b), that the appeal is DISMISSED.
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