Cantatore v. University of Delaware

SUPERIOR COURT OF THE STATE OF DELAWARE

MEGHAN A. ADAMS LEONARD L. WILLIAMS JUSTICE CENTER

JUDGE 500 NORTH KING STREET, SUITE 10400

WILMINGTON, DELAWARE 19801

(302) 255-0634

June 30, 2021

Adam F. Wasserman, Esq. James D. Taylor, Jr., Esq. Ciconte Wasserman & Scerba, LLC Saul Ewing Arnstein & Lehr, LLP 1300 N. King Street 1201 North Market Street P.O. Box 1126 Suite 2300 Wilmington, DE 19899 Wilmington, DE 19801

RE: Gina Cantatore v. University of Delaware

C.A. No.: N20C-06-241 MAA .

Dear Counsel:

This is my decision on the University of Delaware’s (“UD” or the “University”) motion to dismiss in the above-referenced action. The plaintiff, Gina Cantatore (“Cantatore”), filed suit following her on-campus arrest by Officer Morgan Fountain (“Fountain” or “Officer Fountain”) of the Newark Police Department (“NPD”). This serves as a companion opinion to my earlier decision on Officer Fountain’s partial motion to dismiss.1

For the reasons that follow, I conclude that the Amended Complaint 2 fails to state reasonably conceivable claims for negligence, negligent infliction of emotional distress, premises liability, and intentional infliction of emotional distress (Counts I- IV). The University’s motion is granted with prejudice.

I. Background3

On September 14, 2019, Officer Morgan Fountain of the Newark Police Department encountered two UD students on E. Cleveland Avenue.4 As a result of the encounter, UD’s Office of Student Conduct (“OSC”) contacted Cantatore by email on September 17, 2019. The following day, Cantatore visited OSC’s office to follow up on the email and confirm its legitimacy.5 Cantatore met with OSC Program Coordinator Vincent Jackson, who let her know that as a result of the September 14, 2019 incident, she was being charged with violations of the University’s alcohol and disruptive conduct policies.6 Though Cantatore was not informed by Jackson that the meeting was the official Pre-Hearing Meeting regarding the incident, he had her fill out a form entitled “Acknowledgment of Rights and Privacy and Choice of Pre-Hearing Outcome.”7 Jackson told Cantatore that she could be arrested if she did not fill out the form, but if she signed the form and denied the charges, it could prevent arrest.8 He also recommended that Cantatore contact the Newark Police Department at some point. Finally, Jackson informed Cantatore that a hearing on the school’s charges would be held on September 26, 2019, a date selected so Officer Fountain could attend the hearing.9

On September 24, 2019, two days before the OSC hearing, Officer Fountain arrested Cantatore outside of her classroom on University of Delaware’s campus.10 Officer A. Burham of the University of Delaware Police Department (“UDPD”) accompanied Fountain throughout the process, including assisting Fountain in obtaining Cantatore’s class schedule.11

Cantatore filed her initial complaint on June 22, 2020.12 The University filed a motion to dismiss on September 28, 2020.13 The University agreed by stipulation to withdraw its initial briefing, which would be renewed upon the filing of an amended complaint.14 Cantatore filed the Amended Complaint on November 24, 2020.15 The University filed a subsequent motion to dismiss on December 10, 2020.16 Oral argument on the motion was held on March 8, 2021.

II. Legal Analysis

On a motion to dismiss, plaintiffs are entitled to “all reasonable factual inferences that logically flow from the particularized facts alleged.”17 The Court “need not, however, give weight to conclusory allegations of fact or law.”18 Conclusory allegations lack specific supporting factual allegations.19 “A complaint will not be dismissed unless the Court determines that the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof.”20 In essence, if a complaint is completely unviable—a determination that may be made as a matter of law or fact—it must necessarily be dismissed.21

Rule 9(b) states that “[i]n all averments of fraud, negligence or mistake, the circumstances constituting fraud, negligence or mistake shall be stated with particularity.”22 The purpose of the Rule’s particularity requirement is to: “(1) provide defendants with enough notice to prepare a defense; (2) prevent plaintiffs from using complaints as fishing expeditions to unearth wrongs to which they had no prior knowledge; and (3) preserve a defendant’s reputation and goodwill against baseless claims.”23 Rule 9(b)’s particularity requirement is case-specific.24

In her Amended Complaint, Cantatore asserts four claims against UD: negligence (Count I); negligent infliction of emotional distress (Count II); premises liability (Count III); and intentional infliction of emotional distress (Count IV). In order to prevail on the first three claims, Cantatore must establish that the University owed her a duty, as the claims are all rooted in negligence. 25 Absent such a duty, Cantatore cannot prove the University was negligent and her claims must fail as a matter of law. The Court will first address these claims before addressing Cantatore’s intentional infliction of emotional distress claim, which requires a showing of extreme and outrageous behavior on the part of the defendant.

A. Counts I-III It is axiomatic under Delaware law that, for a defendant to be held liable in negligence, they must owe a plaintiff a duty of care. As then-Judge Slights eloquently noted in Doe 30’s Mother v. Bradley, “[r]egardless of how morally, ethically or socially deplorable a defendant’s conduct may be viewed by other constituencies, in the eyes of the law, the defendant may not be held to answer in negligence unless and until the court determines, as a matter of law, that the defendant owed a duty of care to the plaintiff.”26 Duty is a question of “whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person.”27 Such a determination is a matter of law and is to be decided by the Court. 28 Delaware law has made clear that the duties owed by universities to students are not limitless.29

In this case, Cantatore claims that the University owed her a bevy of duties.30 She argues that UD’s breach of these duties ultimately led to the harm she allegedly suffered due to her arrest by Officer Fountain. Cantatore’s Amended Complaint, however, provides no legal basis for almost all of these alleged duties. As such, the Court confines its analysis to the duty owed by a college to its students as set forth by Furek v. University of Delaware, namely as it relates to “the acts of third persons which are both foreseeable and subject to university control.”31 The question for the Court, then, is whether Fountain’s on-campus arrest of Cantatore was both foreseeable and subject to UD’s control such that UD had a duty to protect Cantatore from it.

Officer Fountain’s arrest of Cantatore outside of Cantatore’s classroom in the manner in which it transpired was not foreseeable.32 “If the place or character of [UD’s] business, or [its] past experience, is such that [it] should reasonably anticipate careless or criminal conduct on the part of the third persons, either generally or at some particular time, [UD] may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.”33 Here, there are no facts alleged to suggest that the University of Delaware would “know or have reason to know, from past experience that there [was] a likelihood of conduct” on the part of non-UDPD police officers executing legal arrest warrants that would have been “likely to endanger the safety of the visitor.”34 Unlike Furek, nothing in Cantatore’s Amended Complaint suggests that the University has any type of assumed duty to protect students from conduct akin to Officer Fountain’s arrest of Cantatore.

Fountain’s conduct was not subject to the University’s control. Officer Fountain had a legal right to execute an arrest warrant for Cantatore anywhere on UD’s property.35 The Court accepts as true Cantatore’s allegation that “upon information and belief, NPD will not execute an arrest warrant in UD buildings or classrooms without first obtaining permission from UD, or UDPD, or their agents or employees.”36 This does not, however, suggest that Officer Fountain’s actions were subject to UD’s control. Rather, this is more in line with the statutory charge of 11 Del. C. § 1911(d) to inform the primary jurisdictional agency about the location of an arrest. The Court does not accept as true Cantatore’s conclusory allegation that “[u]pon information and belief, UD and its agents and employees have control over whether to allow NPD to arrest students in class.”37

Accordingly, the University did not owe Cantatore any duty related to Officer Fountain’s on-campus arrest of Cantatore. Therefore, Cantatore’s negligence, premises liability, and negligent infliction of emotional distress claims are dismissed with prejudice.

B. Count IV Cantatore’s claim against UD for intentional infliction of emotion distress (“IIED”) also fails. In order for a defendant to be held liable for IIED, their “action must be extreme and outrageous and there must be a present physical injury.”38 “Defendant’s extreme and outrageous conduct may be intentional or reckless.”39 “The alleged conduct must be behavior that goes beyond all possible bounds of decency, is atrocious, and utterly intolerable in a civilized community.”40 The Amended Complaint contains no facts that evince this type of behavior on the part of the University. As such, this claim is likewise dismissed with prejudice.

III. Conclusion

For the foregoing reasons, the University of Delaware’s motion to dismiss is granted with prejudice.

IT IS SO ORDERED. cc: Prothonotary

Timothy S. Martin, Esq. (by File&ServeXpress) Daryll M. Hawthorne-Searight, Esq. (by File&ServeXpress)