quick facts

Broad Immunities and No Constitutional Torts

Delaware presents a challenging government-liability landscape for plaintiffs. The State maintains robust sovereign immunity, waiving it by statute only in select circumstances, such as when the “risk or loss [is] covered by the state insurance coverage program.” 1 The Delaware Tort Claims Act (“DTCA”) provides another layer of immunity, shielding the State and state employees from civil liability if the employee’s conduct: (1) “arose out of and in connection with the performance of an official duty . . . involving the exercise of discretion”, (2) was “done in good faith”, and (3) was performed “without gross or wanton negligence.” 2

Municipalities are subject to a waiver of governmental immunity only in three enumerated instances of negligence. 3 Municipal employees are liable only for actions that were “not within scope of employment” or “were performed with wanton negligence or wilful and malicious intent.” 4 Given the broad immunities granted to both the State and municipalities, plaintiffs will usually have to resort to personal-capacity suits for intentional torts. However, even in the case of intentional torts, there is no guarantee that plaintiffs will meet the “wanton negligence or wilful and malicious intent” threshold, which courts have interpreted to be a high bar. 5