Smith v. Carey

IN THE SUPREME COURT OF THE STATE OF DELAWARE

OLENA SMITH, §
§ No. 14, 2024
Plaintiff Below, Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
WILLIAM CAREY, § C.A. No. N23C-07-035
§
Defendant Below, Appellee. §

Submitted: July 12, 2024
Decided: September 23, 2024

Before SEITZ, Chief Justice; VALIHURA and GRIFFITHS, Justices.

ORDER

(1) The appellant, Olena Smith, appeals from the Superior Court’s

December 15, 2023, order dismissing Smith’s personal-injury complaint against the

appellee, William Carey. For the reasons discussed below, we affirm the Superior

Court’s judgment.

(2) Smith, who was not represented by counsel, filed a personal-injury

action in the Superior Court on July 7, 2023. The complaint, case-information

statement, praecipe, and summons identified Smith as the only plaintiff and Carey

as the only defendant. The complaint alleged that Carey’s eight-year-old son, Elijah,

who was dressed as Captain America, struck Smith’s ten-year-old daughter, Katia,

in the face with a plastic shield while the children were at a playground during a

swim meet. It alleged that Elijah “was very unruly and ran throughout the area
unsupervised with little regard of who was near him.” After Katia showed her injury

to Smith and reported that “Captain America hit me with the shield,” Smith searched

for the responsible child. Smith spotted a cape and shield “covered on a blanket by

the fence” and saw Elijah “sitting away from the blanket without parents.” Smith

made contact with Carey and obtained his contact information, then took Katia to

the emergency room.

(3) As alleged in the complaint, the blow caused Katia to lose 85% of a

permanent tooth, requiring a partial root canal and the application of a veneer.

Several dentists opined that Katia would require a full root canal and crown in a few

years and eventually an implant. The complaint also described the emotional

distress that the incident and injury caused Katia. Smith sought to recover (i) past

medical and dental expenses ($525); (ii) the projected cost of future treatments

($10,955); and (iii) compensation for emotional distress ($4,000).

(4) Carey, who was represented by counsel, moved to dismiss. Citing

Superior Court Rule of Civil Procedure 17(a), he asserted that Smith and Carey were

not the real parties in interest in the matter. He also argued that the complaint failed

to state a claim upon which relief could be granted. Specifically, he argued that the

complaint did not identify any negligence or conduct by Carey and did not allege

wrongdoing by any party involved in the incident. He also asserted that the

complaint did not plead negligence with sufficient particularity.

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(5) The Superior Court granted the motion to dismiss. The court rejected

Carey’s contention that the complaint was subject to dismissal because it did not

name the real parties in interest. The court stated that, under Rule 17(a), the plaintiff

must be the real party in interest and held that, because a parent is financially

responsible for her minor child’s care, the parent may sue to recover medical

expenses she incurs as a result of tortious injury to the child.1 But the court

determined that the complaint failed to state a claim upon which relief could be

granted. The court stated that it could not determine from the complaint whether

Smith was claiming an intentional or negligent tort; to the extent Smith claimed an

intentional tort, the complaint did not allege any intentional act; and to the extent

Smith was asserting a cause of action that sounded in negligence, Smith “fail[ed] to

plead any facts to go toward negligence.”2

1
Smith v. Carey, 2023 WL 8676290, at *1 (Del. Super. Ct. Dec. 15, 2023) (citing, among other
decisions, Hobbs v. Lokey, 183 A. 631 (Del. Super. Ct. 1936)). In Hobbs, a father sued on behalf
of his minor child for damages caused by the defendant’s negligence; the father did not assert a
claim on his own behalf. The Superior Court held that the cost of medical services provided to the
child could not be recovered in the action because the father, as the person “liable for the support
and maintenance of his minor son,” was primarily liable for those expenses, “it cannot be presumed
that he will not meet his obligations,” and there was no evidence that the child had paid them. Id.
at 632. The court observed that the father would have “a right of action to recover the loss and
damage accruing to him”—that is, the father could sue on his own behalf to recover the cost of the
son’s medical care for which the father paid—and noted that “[i]n most cases when the facts justify
it, though a separate action is brought by the father for loss of services and for expenses necessarily
incurred, by agreement of counsel both cases are tried together as though they were one action.”
Id. at 632 & n.1. The comparable approach in modern practice would be for the parent to file a
complaint naming herself and her minor child as plaintiffs, asserting applicable causes of action,
including the element of damages, with respect to each plaintiff.
2
Smith, 2023 WL 8676290, at *2.
3
(6) This Court reviews de novo a trial court’s decision to dismiss a

complaint for failure to state a claim.3 “We must accept all well-pleaded allegations

as true and draw reasonable inferences in favor of the plaintiff.”4 “‘Nevertheless,

conclusory allegations need not be treated as true, nor should inferences be drawn

unless they truly are reasonable.’”5 As the Superior Court recognized, a complaint

filed by a self-represented plaintiff, “however inartfully pleaded, may be held to a

somewhat less stringent technical standard than formal pleadings drafted by

lawyers.”6 But a pro se complaint is subject to dismissal for failure to state a claim

if it appears that the plaintiff can prove no set of facts in support of her claim that

would entitle her to relief.7

(7) On appeal, Smith argues that the complaint alleged facts sufficient to

state claims for the intentional tort of battery, negligent supervision, and negligent

infliction of emotional distress. We address each of these claims in turn.

(8) Smith asserts that the complaint stated a claim for the intentional tort of

battery because (i) it alleged that Elijah hit Katia with a plastic shield, breaking

Katia’s tooth and (ii) Smith attached to the complaint a copy of a police report stating

that Elijah hit Katia in the face with a plastic shield “after believing [Katia] grabbed

3
Clouser v. Marie, 2022 WL 5069525, at *2 (Del. Oct. 4, 2022); VLIW Tech., LLC v. Hewlett-
Packard Co., 840 A.2d 606, 610 (Del. 2003).
4
Country Life Homes, LLC v. Gellert Scali Busenkell & Brown, LLC, 259 A.3d 55, 59 (Del. 2021).
5
Id. (quoting Feldman v. Cutaia, 951 A.2d 727, 731 (Del. 2008)).
6
Vick v. Haller, 1987 WL 36716, at *1 (Del. Mar. 2, 1987).
7
Id.
4
his shirt.” To survive dismissal, a complaint claiming battery must allege that the

defendant engaged in intentional, unpermitted contact upon the plaintiff’s person

that was harmful or offensive.8 The required intent is the intent to make contact with

the person, not the intent to cause harm.9 Smith sued Carey, not Elijah, and the

complaint did not allege that Carey made any physical contact with Smith (or Katia)

at all, let alone any intentional contact.10 The complaint therefore failed to state a

claim for the intentional tort of battery.

(9) Smith also contends that the complaint alleged facts sufficient to state

a claim against Carey for negligent supervision of Elijah. She points to the

allegations that Elijah (i) struck Katia in the face with a plastic shield and (ii) was

“very unruly and ran throughout the area unsupervised with little regard of who was

near him.” Smith argues that, “[b]ased on the unruly behavior of the child, the

Defendant should have known that an unsupervised 8-year-old child, who was

dressed as Captain America and wielding a plastic shield (a dangerous instrument),

could cause harm to others.”11 Smith asserts that Carey is liable for the injury that

8
Browne v. Saunders, 2001 WL 138497, at *1 (Del. Feb. 14, 2001); Miller v. Dockham, 1998 WL
977117, at *3 (Del. Nov. 19, 1998).
9
Miller, 1998 WL 977117, at *3.
10
See generally Robinson v. Christina Sch. Dist., 2022 WL 5060165, at *10 (Del. Super. Ct. Sept.
21, 2022) (“‘It is well established at common law that the mere relationship of parent-child
imposed no liability on the parent for the torts of his minor child.’” (quoting Rovin v. Connelly,
291 A.2d 291, 292 (Del. Super. Ct. 1972))).
11
Opening Brief at 6.
5
Elijah caused because Carey “failed to supervise and take reasonable action to

control his son’s unruly behavior.”

(10) “It is well established at common law that the mere relationship of

parent-child imposed no liability on the parent for the torts of his minor child.”12 But

a parent has “a duty to exercise reasonable care so to control his minor child as to

prevent it from intentionally harming others or from so conducting itself as to create

an unreasonable risk of bodily harm to them, if the parent (a) knows or has reason

to know that he has the ability to control his child, and (b) knows or should know of

the necessity and opportunity for exercising such control.”13 Thus, the “general rule

is that a parent may be liable for the consequences of failure to exercise the power

of control which he has over his children, where he knows, or in the exercise of due

care should have known, that injury to another is a probable consequence.”14

Moreover, “Delaware law requires that negligence be pleaded with particularity.”15

(11) Applying these principles to Smith’s complaint, we have concluded that

the complaint failed to state a claim for negligent supervision. The complaint did

not allege with particularity how Carey failed to exercise appropriate control of

12
Rovin, 291 A.2d at 292.
13
RESTATEMENT (SECOND) OF TORTS § 316, quoted in Robinson, 2022 WL 5060165, at *10, and
Mancino v. Webb, 274 A.2d 711, 712 (Del. Super. Ct. 1971).
14
Robinson, 2022 WL 5060165, at *10 (internal quotations omitted); Mancino, 274 A.2d at 712
(same).
15
Shively v. Klein, 551 A.2d 41, 44 (Del. 1988); see also DEL. SUPER. CT. R. CIV. PROC. 9(b) (“In
all averments of . . . negligence . . ., the circumstances constituting . . . negligence . . . shall be
stated with particularity.”).
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Elijah, nor did it plead any facts, such as “a prior mischievous and reckless

disposition of [Elijah] and [Carey’s] knowledge thereof,”16 to suggest that Carey

should have known that injury to another person was a probable consequence.17 To

the extent that Smith attempted to plead a negligent-supervision claim, the Superior

Court did not err by dismissing the complaint.

(12) Smith argues that the complaint stated a cause of action for negligent

infliction of emotional distress (NIED) because it described Katia’s injury, detailed

the distress that the injury caused Katia, and requested $4,000 in damages for

emotional distress. As a general matter, a plaintiff establishes NIED by showing

that the defendant’s “negligence proximately caused fright, in one within the

immediate area of physical danger from that negligence, which in turn produced

physical consequences such as would be elements of damage if a bodily injury had

been suffered.”18 “The law of Delaware is well settled that a claim of negligent

infliction of emotional distress or mental anguish may not be maintained in the

absence of evidence of a present physical injury” to the plaintiff.19 Smith was the

16
Mancino, 274 A.2d at 713.
17
See Robinson, 2022 WL 5060165, at *9-10 (granting parents’ motion to dismiss because the
complaint did not “allege facts . . . that indicate that [the parents] had any knowledge prior to the
[i]ncident that [their child had previously engaged in similar conduct] or had any propensity to act
in a manner that when left unaccompanied and unsupervised could reasonably result in
‘mischievous and reckless’ conduct causing injury to another” (quoting Mancino)).
18
Robb v. Pa. R.R. Co., 210 A.2d 709, 714-15 (Del. 1965).
19
McKnight for McKnight v. Voshell, 1986 WL 17360, at *3 (Del. Aug. 6, 1986); see also
Mergenthaler v. Asbestos Corp. of Am., 480 A.2d 647, 651 (Del. 1984) (“In any claim for mental
anguish, whether it arises from witnessing the ailments of another or from the claimant’s own
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only plaintiff in the action,20 and the complaint did not allege that Smith suffered

any physical consequences from the incident. The complaint therefore did not state

a claim for NIED.

(13) Finally, Smith contends that the Superior Court’s dismissal of the

complaint violated her constitutional right to a jury trial. Her argument is misplaced.

“The Delaware Constitution preserves the right to trial by jury as it existed at

common law.”21 Thus, if an action “known to the common law” proceeds to trial in

the Superior Court, the parties generally are entitled to request a jury trial.22 Not

apprehension, an essential element of the claim is that the claimant have a present physical
injury.”); Robb, 210 A.2d at 711 (“[I]t is accepted as settled that there can be no recovery for fright
alone, not leading to bodily injury or sickness, arising from the negligence of another.”). Cf.
Armstrong v. A.I. Dupont Hosp. for Children, 60 A.3d 414, 423 (Del. Super. Ct. 2012) (denying
motion to dismiss parents’ NIED claim arising from defendants’ negligent medical treatment of
their son where the defendants’ negligence occurred in the parents’ presence, and stating that
parents alleged that the incident caused the parents to suffer bodily injury, sickness, and mental
illness).
20
A parent may sue on behalf of a minor child. See DEL. SUPER. CT. R. CIV. PROC. 17(c)
(“Whenever [a minor child] or incompetent person has a representative, such as a general guardian,
trustee, committee, conservator, or other like fiduciary, the representative may sue or defend on
behalf of the [minor child] or incompetent person. [A minor child] or incompetent person who
does not have a duly appointed representative may sue by a next friend or by a guardian ad litem.
. . .”). But Smith did not do so. Smith did not state that she was suing as Katia’s next friend or
guardian, nor did the complaint, case-information statement, praecipe, or summons identify Katia
as a plaintiff.
21
Graham v. State Farm Mut. Auto. Ins. Co., 565 A.2d 908, 911-12 (Del. 1989); see also Baird v.
Owczarek, 93 A.3d 1222, 1226 (Del. 2014) (“Following the adoption of the Fourteenth
Amendment to the United States Constitution, the Sixth Amendment right to trial by
jury in criminal proceedings has been deemed to have been incorporated by the Due Process clause
and now also provides protection against state action. Nevertheless, the United States Supreme
Court has not held that the Seventh Amendment’s guarantee of jury trials in civil proceedings was
made applicable to the states by the incorporation doctrine . . . . Accordingly, the right to a
jury trial in civil proceedings has always been and remains exclusively protected by provisions in
the Delaware Constitution.” (citations omitted)).
22
Graham, 565 A.2d at 912.
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every action must proceed to trial, however; preliminary requirements must first be

satisfied. One such requirement is that the complaint must state a legally cognizable

cause of action. Because the complaint in this matter did not do so, dismissal of the

complaint did not violate Smith’s right to a jury trial.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COURT:

/s/ Collins J. Seitz, Jr.
Chief Justice

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