IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ANNE WILLIS, as the Personal :
Representative of the Estate of :
Lila G. Inskeep, and ANNE WILLIS, :
as an individual. : C.A. No. N25C-10-217 KMV
:
Plaintiffs, :
:
v. :
:
SUPPORTIVE CARE SOLUTIONS LLC, :
a domestic limited liability company, :
ERIC MERLINO, an individual. :
:
Defendants. :
Submitted: February 19, 2026
Decided: August 11, 2026
Upon Defendants’ Supportive Care LLC
and Eric Merlino’s Motion to Dismiss -GRANTED, in part, and DENIED, in part.
Shakuntla L. Bhaya, Esq. Doroshow, Pasquale, Krawitz & Bhaya, Newark,
Delaware, Counsel for Plaintiffs
Eric Scott Thompson, Esq. Marshall Dennehey, PC, Wilmington, Delaware, Counsel for Defendants
Vavala, J.
1
I. INTRODUCTION
This matter concerns an adult guardianship over an elderly disabled woman
who lived with her son until her death in 2023. A bitter relationship existed between
the woman’s son and daughter, the plaintiff, who both sought control over her affairs
to varying degrees. In 2020, the siblings consented to the Court of Chancery’s
appointment of a professional guardian over the woman’s person and property. In
2021, however, the Court of Chancery, having determined the woman’s disability
had partially resolved, terminated the guardianship over her person and limited the
guardianship over her property.
Sadly, law enforcement officers discovered the mother and son deceased in
their shared residence in late 2023. Contending the professional guardian deficiently
performed its court-ordered obligations and failed to conduct a welfare check it
voluntarily agreed to perform, plaintiff filed a civil complaint in Superior Court
asserting claims of breach of fiduciary duty, negligence, and wrongful death against
the guardian.
The Court considers here whether any of these claims must be dismissed for
lack of jurisdiction under Rule 12(b)(1) or failure to state a claim upon which relief
may be granted under Rule 12(b)(6). Construing the record in the light most
favorable to the nonmovant plaintiff, the Court concludes Count V (breach of
fiduciary duty) and portions of Counts I, II, III, IV, VI, and VII must be dismissed
2
because the Superior Court lacks jurisdiction over claims of breach of fiduciary duty
by a court-appointed guardian. But at this early stage of the proceedings, further
discovery is needed to determine whether plaintiff has stated viable claims against
the guardian, for undertaking and breaching legal duties outside its role as a
fiduciary.
Accordingly, defendants’ motion to dismiss under Superior Court Civil Rule
12(b)(1) is GRANTED in part and denied in part. Defendants’ Rule 12(b)(6)
motion to dismiss is DENIED. Given that the lion’s share of the factual allegations
in the Complaint relate to the exercise of a Court of Chancery-appointed guardian’s
fiduciary duties, this matter may be better handled by that court, which may exercise
jurisdiction over any legal claims under the Clean Up Doctrine.
II. BACKGROUND1
A. The Parties
Plaintiff Anne K. Willis (“Plaintiff”) is the daughter of the late Lila G. Inskeep
(“Lila”) and the administrator of her estate.2 At all relevant times, Lila lived with
1
Unless otherwise noted, all Docket Items [“D.I.”] refer to Case No. N25C-10-217 KMV. The
facts set forth herein are drawn from D.I. 1, Complaint [“Compl.”] and Exhibits [“Ex.”] thereto,
which were incorporated by reference. The averments set forth therein are assumed to be true
for purposes of the instant motion.
2
Compl. ¶ 1-4.
3
her adult son, Plaintiff’s brother, John Berry Inskeep (“John”) at 4600 Griffin Drive
in Wilmington, Delaware (the “Residence”).3
Defendant Supportive Care Solutions LLC (“SCS”) is a company
incorporated in Delaware that provides professional guardianship services.4
Defendant Eric Merlino (with SCS, the “Defendants” or the “Guardian”) is an
owner, agent, and/or employee of SCS5 alleged to have acted within the course and
scope of his employment.6 Defendants served as the guardian of Lila,7 from 2020
until her death in 2023, with specific powers and duties as discussed below.
B. The Court of Chancery Guardianship Proceedings
1. SCS is appointed the Guardian of Lila’s person and property
In 2019, Plaintiff and John filed cross-petitions in the Court of Chancery
seeking guardianship over the person and property of their mother, Lila.8 During a
contested hearing in 2020, they agreed to dismiss their cross-petitions and consent
to the appointment of a professional guardian for Lila’s person and property.9 After
3
Id. ¶¶ 5-7.
4
Id. ¶ 8.
5
Id. ¶¶ 8-10.
6
Id. ¶ 11.
7
Compl., Ex. J, IMO Lila G. Inskeep, C.M. #19229-N-SEM, at *3-4 (Apr. 13, 2021). 8
Id.; see also Compl. ¶ 13.
9
Id. at 1.
4
finding Lila was “a person with a disability” under 12 Del. C. § 3901(a)(2),10 by
Order dated March 5, 2020,11 the Court of Chancery appointed SCS as guardian for
Lila’s person and property12 with specific powers and duties.13
The Guardian performed court-ordered duties related to managing Lila’s
person and finances14 and filed a series of petitions and status reports with the Court
of Chancery.15 The Guardian also reported to the Court of Chancery regarding its
contacts with Lila’s children, Plaintiff and John.16
10
A person with a disability is someone who “[b]y reason of mental or physical incapacity is unable properly to manage or care for their own person or property, or both, and, in consequence thereof, is in danger of dissipating or losing such property or of becoming the victim of designing persons or, in the case where a guardian of the person is sought, such person is in danger of substantially endangering person’s own health, or of becoming subject to abuse by other persons or of becoming the victim of designing persons.” 12 Del. C. § 3901(a)(2).
11
Compl. Ex. C, IMO Lila G. Inskeep, C.M. # 19229-N-SEM (Mar. 3, 2020) and IMO Lila G. Inskeep, C.M. # 19229-N-SEM (Mar. 5, 2020).
12
Compl. ¶¶ 14-15.
13
See Compl. Ex. C; see also § 3902(d)(2):
The Court shall specifically enumerate the powers and duties of the guardian
appointed under this subsection, granting either of the following:
a. All of the powers and duties in subchapter II of this chapter.
b. Limited powers based on the needs of the person with an alleged disability. A
grant of limited guardianship may specify 1 or more of the following:
1. The limitations upon the authority of the guardian.
2. The areas of decision-making retained by the person with an alleged
disability.
3. The specific, limited purpose of the guardianship.
14
Compl. ¶16; see also Ex. C.
15
Id. ¶ 20.
16
Id. ¶ 22.
5
Initially the Court directed the Guardian to retain and implement
recommendations from Decisions 4 Life, an independent professional evaluation
service.17 Decisions 4 Life recommended Lila be placed in an assisted living facility
specializing in dementia care or, if she stayed at home, that a home health aide
provide services three days per week.18 It did not go well. In August 2020, the
Guardian reported that Lila and John refused to allow the aide to provide any
services and sent her away three times.19 Thus, the Guardian discontinued the aide,
but provided some support directly to Lila, including twice daily Meals on Wheels
deliveries and visiting the home every two weeks to weigh her.20 The Guardian
reported Lila was not receiving appropriate medical care;21 John continued to use
Lila’s car despite the court’s order;22 and John and Lila “repeatedly thwarted the
Guardian’s efforts to ensure Lila’s health, safety, and general quality of life.”23 The
Guardian recommended Lila be placed in a dementia care facility and asked for
further instructions from the court.24
17
Id. ¶ 18; and id., Ex. D.
18
Compl., Ex. D at 3-4.
19
Compl., Ex. E ¶¶ 11-13.
20
Id. ¶ 16.
21
Id. ¶¶ 17-21.
22
Id. ¶¶ 5, 22-26.
23
Id. ¶ 33.
24
Compl. ¶¶ 34-37.
6
The Court of Chancery issued a rule to show cause as to why John should not
be held in contempt.25 John was held in contempt after failing to appear for the
hearing; however, in a late response, he provided a doctor’s note indicating Lila had
recently tested well on a cognitive exam.26 The Court removed John as Lila’s
caregiver, including the compensation he was paid, and authorized the Guardian to
enter any area of the home and remove Lila if needed for medical appointments,
shopping, or for any other purpose.27 But “[i]n light of the doctor’s note submitted
by John, the [court ordered the] Guardian should not permanently remove Lila from
the home until [she] has been evaluated by a medical professional and the Guardian
is assured that Lila has not recovered such that termination of the guardianship would
be appropriate.”28
Relations between the family members worsened, and disputes with the
Guardian ensued.29 In January 2021, John objected to the Guardian’s fees, its
communications with Plaintiff, and his termination as a caregiver, with its
concomitant payment.30 Lila objected to John’s termination as caregiver, claimed
the Guardian was not distributing payments as required, and stated she wished to
25
Compl., Ex. F, IMO Lila G. Inskeep, C.M. # 19229-N-SEM (Sept. 11, 2020).
26
Compl., Ex. F.
27
Id. ¶ 4.
28
Id. ¶ 5.
29
See Compl., Exs. B, C, E, F, J, M, N, O, and P.
30
Compl., Ex. G.
7
have control over her own funds.31 Also dissatisfied, in March 2021, Plaintiff, who
had not seen her mother in over a year, wrote the court about the poor condition of
the Residence, Lila’s memory loss, and John’s controlling conduct. 32 Plaintiff stated
John took their mother to the grocery store, but failed to bring her to visit another
sibling in a nursing home.33 Plaintiff agreed Lila should remain in the home, but
asked the court to order additional protections, including: more dementia evaluations
for Lila; that Plaintiff be copied on all court correspondence and quarterly safety
evaluations of the Residence; that the Guardian be ordered to call Lila at least once
monthly, provide Lila with her own cell phone with pre-programmed numbers for
immediate family members, and give Lila a debit card from which no cash
withdrawals could be made.34 Plaintiff was also dissatisfied with the Guardian’s
lack of communication with her and its fees, but agreed SCS should continue as
professional guardian.35 Regarding the Guardian’s contacts with family members,
other than Lila, Plaintiff suggested: “SCS only be required to maintain contact with
[Lila] [and if she] is deemed able to make her own medical decisions, they should
not be required to contact John or [Plaintiff] unless there is an emergency” or if
31
Id.
32
Compl., Ex. H; See also id. ¶ 23.
33
Id.
34
Compl., Ex. H.
35
Id.
8
“[t]here is express concern regarding [Lila’s] safety or wellbeing.”36 The Guardian
advised the Court of Chancery of its own concerns regarding Lila’s competency and
made recommendations to the court regarding her medical care and finances.37
2. The Court of Chancery terminates the guardianship of Lila’s person
Lila and John hotly disputed Plaintiff’s and SCS’s contentions, and petitioned
the Court of Chancery to terminate the guardianship,38 relying upon a physician’s
affidavit attesting Lila had recovered and no longer had a disability under Delaware
law.39 The Court of Chancery appointed an attorney ad litem, who investigated the
matter and also recommended the Court’s guardianship over Lila’s person be
terminated, but that its guardianship over her property be continued.40
During another contested hearing on March 24, 2021, the Court of Chancery
observed, “[Lila] testified extensively regarding her ability to make decisions on her
own behalf and [a] strong interest in doing so” and that “[her] testimony was lucid
and persuasive in demonstrating her regained capacity to make medical decisions.”41
The Court reasoned that “[h]aving found that [Lila] has the capacity to make these
decisions, [the court did] not have jurisdiction to impose any of the purported
36
Id.
37
Compl. ¶ 24.
38
Compl., Ex. J, IMO Lila G. Inskeep, C.M. # 19229-N-SEM, at *1 (Apr. 13, 2021). 39
Id. at 1.
40
Id. at 1-2; see also Compl., Ex. K, Report of Attorney Ad Litem, dated Dec. 21, 2020. 41
Id. at 2.
9
protections suggested by [SCS or Plaintiff]” and ruled, “[Lila] shall be free to make
decisions regarding her person without the interference or oversight of [SCS or
Plaintiff].”42
Accordingly, by Order dated April 13, 2021, the Court of Chancery
terminated Defendants’ duties as guardian Lila’s person,43 but continued the
guardianship over Lila’s property until another hearing could be scheduled in six
months.44 In the interim, the Court limited the guardianship over Lila’s property,
ordering Defendants to: assist Lila in opening a personal bank account for her use;
transfer $600 to Lila’s personal account so that she could pay her own utilities;
redirect the power and water bills to Lila for payment; work cooperatively with Lila;
continue to ensure all other bills and expense were paid from the guardianship
account; and provide an additional $500 to Lila in cash for spending money. 45 The
six months was a trial period for the Court to assess whether Lila could demonstrate
diligent management of her finances.46 The Magistrate’s Order of April 13, 2021
42
Compl., Ex. K at 3.
43
Compl., Ex. J, IMO Lila G. Inskeep, C.M. # 19229-N-SEM, at *3-4 (Apr. 13, 2021). 44
Id.
45
Id. at 4-6.
46
Id. at 5; see also Compl., Ex. M, IMO Lila G. Inskeep, C.M. # 19229-N-SEM, at *1-2 (Del. Chn. Apr. 6, 2021), aff’d, IMO Lila G. Inskeep, C.M. # 19229-N-PAF (Aug. 5, 2022).
10
and its limited guardianship structure was affirmed over Plaintiff and John’s
exceptions.47
In September 2021, Plaintiff again complained to the Court of Chancery about
the about the Guardian’s lack of reporting and responsiveness to her inquiries, as
well as the fees charged.48 She also took issue with the Court of Chancery’s
rulings.49 Plaintiff asked the Court to dismiss SCS as Guardian of Lila’s property
and return financial control to Lila, stating: “At this point, [Lila] just may starve to
death if the court waits until a hearing in January of 2022. I realize giving [Lila] the
money that John will control it, spend it on his habits, but at least he will have extra
to feed her.”50
Lila failed to timely pay the bills51 and so in April the Court of Chancery
denied Lila and John’s petition to terminate the guardianship over her property.52
Subsequently, on August 2, 2022, it ordered SCS to stop transferring the $600 to
47
Compl., Ex. J.
48
Compl., Ex. L.
49
Id.
50
Id.
51
Compl. ¶ 28; see also id., Ex. M, IMO Lila G. Inskeep, C.M. # 19229-N-SEM, at *1-3 (Apr. 6, 2022).
52
Compl., Ex. M, at *1-3.
11
Lila for payment of utilities and resume its payment of the utilities, but continue to
provide Lila $500 spending money each month.53
The Guardian’s August 26, 202254 status report advised that, prior to the
August 2, 2022 Order, Defendant Merlino had been going to the Residence once a
month to deliver Lila’s check, but because he was now about to electronically
transfer the $500 directly to Lila,55 he stopped the in-person visits.56 Defendant
Merlino stated he typically speaks to Lila once or twice per week by phone, but with
fewer contacts over the last three weeks.57 In response to Plaintiff’s request to
increase Lila’s monthly spending amount, the Guardian explained it could hire
someone to do the shopping, but that Lila was “opposed to any type of oversight.”58
He also indicated Lila continued to receive meal delivery and that he was “willing
to try things such as a grocery store gift card.”59
The Court declined Plaintiff’s request to replace SCS as Guardian and appoint
the Office of the Public Guardian as successor guardian due in part to SCS’s
53
Compl., Ex. N, IMO Lila G. Inskeep, C.M. # 19229-N-SEM, at *1 (Del. Ch. Aug. 2, 2022). 54
Compl., Ex. O, Court of Chancery Judicial Action Form [“JAF”], C.M. # 19229-N-SEM (Aug. 26, 2022).
55
Id. at 1-2.
56
Id.
57
Id. at 2.
58
Id. at 2.
59
JAF.
12
“continued willingness to serve based on the Court’s decision.”60 Specifically, the
Court observed:
[It] had been concerned the relationship had deteriorated to the point
where the guardianship could not work. The Court is encouraged to
hear the guardianship seems to be working okay and the Court will
continue to use court orders and letters to assist in explaining the
guardian’s duty and role. The Court believes SCS is the best guardian
to serve for [Lila].”61
Plaintiff continued to write the Court of Chancery with concerns over her
mother’s personal welfare and property, as well as the Guardian’s responsiveness to
her. On December 21, 2022, the Court denied Plaintiff’s request for additional
funding for Lila’s Christmas expenses.62 And as to Plaintiff’s ongoing disputes with
SCS, the Court of Chancery explained the Guardian’s limited role thusly:
Regarding [Lila’s] home and vehicle, I appreciate [Plaintiff’s]
concern. The guardian of the property is charged with protecting
[Lila’s] assets and ensuring they are preserved and only used for [her]
benefit. But the guardian of the property is limited when it comes to
asserting control over [Lila’s] real and tangible property. As such, it
is not unreasonable for the guardian of the property to rely, to some
extent on [Lila] to inform the guardian of the property as to any
necessary repairs or maintenance. I say “to some extent” because such
reliance has limits. For example, if the guardian of the property has
reason to believe that real or personal property is being neglected or
damaged such that the person with a disability’s financial interests are
put at risk, the guardian should assert greater control to protect those
assets.
60
Id.
61
Id. at 3.
62
Compl., Ex. P, IMO Lila Inskeep, C.M. # 19229-N-SEM (Dec. 21, 2022).
13
It is not clear, on the record before me, if there is such a risk to
[Lila’s] financial interests. Rather, [Plaintiff’s] primary concern
appears to be [Lila’s] safety. Because [Lila] does not have a guardian
of her person, she is responsible for her own safety and should alert the
guardian of her property to necessary repairs or maintenance to
resolve any dangerous conditions. Thus, I will not direct the guardian
to take any action regarding the home or the vehicle at this time.63
On August 2, 2023, the Guardian filed its Annual Update and Medical
Statement with the Court of Chancery.64 It advised the court that its contact with
Lila was “sporadic with occasional phone calls and visits, perhaps once per
month.”65 The Guardian reported there were no significant problems Lila’s finances,
but was unable to provide a report regarding Lila’s physical or mental condition
because, “We have not seen the client in 6 months.”66
3. Plaintiff asks the Guardian to perform welfare checks on Lila
In early October 2023, Plaintiff requested Defendant Merlino conduct a
welfare check on Lila’s person, home, and vehicle, during which the following email
exchange took place:
October 2, 2023
Plaintiff: Eric, I am just checking in to see if
anyone has seen my mother recently?
No one in my family has heard from
her in over a year. Just would like to
63
Id. at *2-3 (emphasis added).
64
Compl., Ex. Q.
65
Id.
66
Id. at 2.
14
know that she has been seen and is
doing okay.
October 5, 2023
Merlino (12:54 PM): We have not heard from [Lila] in quite
a while. Unfortunately, we have no
authority or jurisdiction to do a
wellness check.
Plaintiff (2:54 PM): Thank you for responding. I am
worried about her safety. I don’t know
of anyone that has seen or heard from
her in months. Is her monthly
allowance auto deposited or still
delivered to John? Is it possible to
require delivery to her? Thank you.
Plaintiff (4:23 PM): And anyone can request a wellness
check, you do not need to have
authority – can just be concerned.
Plaintiff (10:51 PM): Would it be possible for you to make
contact with her to make sure her needs
are being met? Is her garbage being
picked up? Does she have any
household needs? Does she need
money for car repairs? The cost of
living has gone up so much are her
personal needs being met?
During that call, it would be the perfect
time to assess her orientation and
perhaps get a feel for her safety.
15
October 6, 2023
SCS 1:43PM: It is deposited.67
On December 21, 2023, Plaintiff requested New Castle County Police
(“NCCPD”) conduct a welfare check on Lila, but asked that her request be
anonymous.68 Plaintiff reported to police that Meals on Wheels contacted her
because they had been unable to make contact with anyone at the Residence 69 and
that her aunt went to the Residence but was unable to make contact with anyone.70
NCCPD’s investigation revealed mail piled up from December 8 onward in the
mailbox and strewn about meal containers, but that the house was secured, there
were no odors, and the vehicle was gone.71 A neighbor advised police that she hadn’t
seen Lila, but saw John coming and going, as recently as the day prior. 72 NCCPD
contacted Defendant Merlino who advised he sent a co-worker out earlier that same
day, but had been unable to make contact with anyone.73 Defendant Merlino stated
he had a legal right to access the property, but had no means of doing so.74
67
Compl., Ex. S.
68
Compl., Ex. T, New Castle County Police Report, dated December 21, 2023.
69
Id. at 2.
70
Id.
71
Id.
72
Id.
73
Compl., Ex. T, New Castle County Police Report, dated December 21, 2023.
74
Id.
16
According to police, “[Merlino] stated he would send a team over in the future with
County Police to change the locks and gain entry.”75 NCCPD advised they would
standby with the Guardian, if requested, when he attempted to change the locks and
gain entry.76 The police determined “there was no exigency or cause to force entry
into the residence.”77
The next day, December 22, 2023, Plaintiff emailed the Guardian:
I reached out to you on October 3, expressing my concern for my
mother's safety and well-being. To this day no one has seen or heard
from her. At the time, I had asked you to reach out to her to assess if
her property is well maintained. Does she have any household needs?
Does she need car repairs or even home repairs? Is her heater working?
Refrigerator? etc. Were you able to speak directly with her to find out
if her property needs any repairs? I also expressed at that time that you
speak directly to her to ascertain her needs (not just John’s).
Family members have noticed that her car has been missing for
over a month from her driveway. I appreciate that you are responsible
for her property. Do you know where the car is? Unfortunately, her
brother passed away last week. My 92 year old aunt went to her door to
let her know that he passed and about the funeral. She knocked and
waited for a long time with no answer. John would normally answer for
this aunt. John does not even answer his phone for her.
My aunt also observed that the Meals on Wheels food delivery
has been strewn across the front steps and yard since at least Monday.
My aunt stated that it looks as if an animal has gotten into the food. It
does not appear that anyone was outside the home, or they would have
walked through it. There is a lot of concern over the poor appearance
75
Id.
76
Id.
77
Id.
17
of her home and property. Do you know if anyone has checked it in the
past couple of years?
A wellness check was requested, and as you know, the police
were not able to get anyone to come to the door. I have been told it is
within the guardian’s right to change the locks to gain access to the
home, and that the police will provide supervision. Would you please
do this as soon as possible to assure that her home is safe, maintained,
and in working order? Of course, our main concern is her personal
safety and orientation, but we are extremely thankful that someone is
at least responsible for her property.
Again, would you please do this as soon as possible with a police
escort? I sincerely just wish for my mother to be safe, and have her
physical needs met including maintenance of her finances, property,
etc.78
4. The Guardian discovers John and Lila deceased in the Residence
On December 29, 2023, Defendant Merlino and a co-worker went to the
Residence with a locksmith and gained entry.79 Shortly afterward, they found John’s
body and called 911.80 Lila’s body was discovered by police in another room of the
Residence.81 The home was in disarray and dirty.82
Plaintiff was interviewed by police and advised she asked the Guardian to
perform a welfare check on October 3, 2023, but the guardian never did so.83
78
Compl., Ex. R.
79
Compl., Ex. U, New Castle County Police Report, dated December 29, 2023.
80
Id.
81
Id.
82
Id.
83
Compl., Ex. S, New Castle County Police Report Supplement, dated Jan. 2, 2024.
18
Plaintiff then went to the home on October 14, 2023, saw John, and was advised by
John that Lila was fine.84 She also reported that a week prior, her aunt went to the
Residence to notify Lila of funeral arrangements for her brother.85 When there was
no response by phone or at the door, a welfare check was called in.86 Police
responded and found the home secured.87
C. Plaintiff’s Claims in Superior Court
Plaintiff claims the Guardian breached fiduciary and legal duties by not
ensuring Lila’s home was safe or deploying funds to ensure the integrity of her
property. At their root, however, Plaintiff’s claims are that the Guardian failed to
protect Lila’s safety and welfare, resulting in her death. While earlier time frames
are referenced, the conduct and omissions alleged in the Complaint stem from the
time period Defendants SCS and Merlino served solely as guardian of the property
for Lila. Count I is a survival action brought by Plaintiff on Lila’s behalf under 10
Del. C. § 3701 for her personal injuries resulting in death due to the Guardian’s
alleged failure to provide her access to a phone and adequate food or water.88 Count
II is a wrongful death action under 10 Del. C. 3722(a) brought by Plaintiff
84
Id. at 2.
85
Id.
86
Id.
87
Id.
88
Compl. ¶¶ 49-53.
19
individually for her mental anguish, as well as the loss of her mother’s support,
services, and pecuniary benefits.89 Count III is a common law negligence action
brought on behalf of the estate under the Restatement (Second) of Torts § 323
alleging the Guardian voluntarily undertook a duty to render services to Lila and
failed to “exercise reasonable care and due diligence in the performance of that
duty.” 90 Plaintiff contends the Guardian breached its duty to Lila under § 323 in two
ways: (1) because the guardian failed to perform a series of functions associated with
the property91 and (2) because it voluntarily offered and represented to the police it
would “arrange and coordinate a follow-up welfare visit,” but failed to do so for eight
days.92 Count IV is a common law negligence claim, again brought by the estate,
89
Id. ¶¶ 54-57.
90
Id. ¶¶ 60-62.
91
Plaintiff alleges Defendants breached their common law duty under § 323, inter alia, by:
a. Disregarding repeated reports of uncollected Meals on Wheels deliveries;
b. Failing to monitor status of the Residence;
c. Failing to maintain contact with Decedent;
d. Failing to act in the best interest of their Ward, the Decedent;
e. Disregarding clear indications of imminent harm to Decedent;
f. Failing to intervene and mitigate known danger earlier;
g. Failing to ensure the Residence was habitable;
h. Defendants omissions or acts induced reliance on the Plaintiff / Decedent,
foregoing other help;
i. Defendants failed to act as reasonably prudent guardians of the property who
voluntarily offered to do a welfare check on the Decedent. (Compl. ¶ 68).
92
Id. ¶ 60.
20
under Restatement (Second) of Torts § 324A alleging liability to a third person for
negligent performance of an voluntarily assumed duty.93 Plaintiff contends the
Guardian breached its duty to Lila under § 323 by (1) “failing to conduct a welfare
check until December 29, 2023” after “assuming responsibility for tasks NCCPD
would otherwise have performed, [thus, ]. . .supplant[ing] NCCPD’s duty to
safeguard a vulnerable resident during an active welfare investigation” and “as a
result, NCC did not conduct a welfare check and Plaintiff refrained from arranging
an independent check, in reliance on Defendants’ promise.”94 In the alternative,
Plaintiff alleges she “reasonably relied upon Defendants to perform the undertaking
with due care95 [and] Decedent was harmed when Defendants failed to do so.”96
Count V sets forth a breach of fiduciary duty claim alleging Defendants breached
their duties of loyalty, care, and diligence under 12 Del. C. § 3923, as well as the
93
Id. ¶¶ 70-83.
94
Compl. ¶¶ 78-80.
95
Plaintiff alleges a litany of omissions to show Defendants breached its common law duty under
§ 324A:
a. Disregarding repeated reports of uncollected Meals on Wheels deliveries;
b. Failing to enter the home until December 29, 2023;
c. Failing to monitor status of the Residence;
d. Failing to maintain contact with Decedent;
e. Failing to act in the best interest of its Ward, the Decedent;
f. Disregarding clear indications of imminent harm to Decedent;
g. Failing to inform NCCPD or Plaintiff that they had not performed the welfare
check. (Compl. ¶ 82).
96
Compl. ¶ 81.
21
March 5, 2020 Order of the Court of Chancery.97 Count VI alleges negligence per
se based upon Defendants’ violation of fiduciary duties set forth in 12 Del. C.
Chapter 39, Guardianship98 and committing a criminal offense against a vulnerable
adult under 11 Del. C. §§ 1105(a), (c), (d) “by recklessly endangering, neglecting,
and misapplying the property of a vulnerable adult.”99 Finally, Count VII alleges the
acts set forth in Counts I-VI were grossly negligent and reckless resulting in Lila’s
“decline, prolonged suffering, and death, and in causing the damages sustained by
Plaintiff.”100
D. The Parties’ Contentions
Defendants move for dismissal of the Complaint on two bases. First, they
argue this Court lacks subject matter jurisdiction over the controversy because all
the factual allegations in the Complaint stem from Defendants’ fiduciary duties over
97
Id. ¶¶ 84-94.
98
See id. ¶ 96 (alleging violation of 12 Del. C. § 3921(c) by failing to do “whatever [was] necessary
for the care, preservation and increase” of the estate); ¶ 97 (alleging violation of 12 Del. C.
§ 3922(b) by failing to deposit ward funds in properly titled, segregated accounts and
promptly safeguard those assets; ¶¶ 98-99 (alleging violation of 12 Del. C. § 3923(e) by
failing to manage and apply estate assets “solely for the ward’s benefit” and “failing to
obtain necessary Court approval for major disbursements”); ¶ 100 (alleging violation of 12
Del. C. §3910(a) by failing to report to the Department of Health and Social Services that
an “impaired adult” was in need of protective services; ¶¶ 101-102 (alleging violation of
12 Del. C. §3913(a) by knowingly or recklessly neglecting and financially exploiting an
impaired adult” or “knowingly or recklessly neglecting and financially exploiting an
impaired adult, conduct made a Class A felony when the neglect results in death.” 99
See Compl. ¶ 103.
100
Id. ¶¶ 103-110.
22
which the Court of Chancery has exclusive jurisdiction.101 Second, they contend the
Complaint must be dismissed for failure to state a claim upon which relief may be
granted because Defendants owed no duty to either Lila or the Plaintiff. Plaintiff
responds that her claims for survival and wrongful death are common law and
statutory legal claims seeking monetary damages more akin to professional
negligence than equitable claims of breach of fiduciary duty.102 Neither side is
completely correct as discussed below.
III. STANDARD OF REVIEW
Rule 12(b)(1) allows a Defendant to seek dismissal of a claim based upon lack
of subject matter jurisdiction.103 The burden rests with the plaintiff to make a
sufficient showing that jurisdiction exists.104 “The jurisdiction of the subject matter
of any controversy in any court must be determined in the first instance by the
allegations of the complaint.”105 The Court accepts the material factual allegations
set forth in the Complaint as true.106 The Court may also consider the pleadings,
101
D.I. 8, Mot. of Defendants to Dismiss Plaintiff’s Complaint [“Mot.] ¶ 7.
102
D.I. 11, Plaintiff’s Response in Opposition to Defendants’ Motion to Dismiss [“Resp.”] at 3-4. 103
Super. Ct. Civ. R. 12(b)(1).
104
Acme Mkts., Inc. v. Oekos Kirkwood, LLC, 2025 WL 2172302, at *3 (Del. Super. July 31, 2025).
105
Dickerson v. Murray, 2015 WL 447607, at *2 (Del. Super. Ct. Feb. 3, 2015) (citing Stidham v. Brooks, 5 A.2d 522, 524 (Del. 1939)).
106
Id. (citing Grace v. Morgan, 2004 WL 26858, at *1 (Del. Super. Ct. Jan. 6, 2004) and, in turn, citing Diebold v. Computer Leasing v. Commercial Credit Corp., 267 A.2d 586 (Del. 1970)).
23
affidavits, discovery of record, and briefs in determining whether a plaintiff satisfies
that burden107 and draws all reasonable inferences in favor of the nonmovant.108 In
deciding whether it has subject matter jurisdiction, “the Court must look beyond the
language of the complaint to determine the true nature of the claim and the desired
relief.”109
Rule 12(b)(6) allows a Defendant seek dismissal of a claim for “failure to state
a claim upon which relief can be granted.”110 However, the threshold showing a
plaintiff must make to survive a motion to dismiss is low.111 To survive a motion to
dismiss, plaintiff need only give “general notice of the claim asserted.”112 In ruling
on a Rule 12(b)(6) motion, the Court must “accept all well pleaded factual
allegations as true;”113 “accept even vague allegations as ‘well pleaded’ if they give
opposing party notice of the claim;”114 and “draw all reasonable factual inferences
107
Mason, 2024 WL 4563935, at *2 (quoting Econ. Steel, 2020 WL 1866869, at *1). 108
In re Proton Pump Inhibitors Prods. Liab. Litig., 2023 WL 5165406, at *5 (Del. Super. Aug. 11, 2023) (quoting Appriva S’holder Litig. Co., LLC v. EV3, Inc., 937 A.2d 1275, 1284 n.14 (Del. 2007)); see also Degregorio v. Mariott Intl., Inc., 2018 WL 3096627, at *5 (Del. Super. June 20, 2018).
109
Defranco v. Pordham, 2015 WL 4751217, *1 (Del. Super. Aug. 11, 2015) (quoting Mehiel v. Solo Cup Co., 2007 WL 901637, at *2 (Del. Super. Mar. 26, 2007)).
110
Del. Super. Ct. Civ. R. 12(b)(6).
111
Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
112
Id. (citing Ramunno, 705 A.2d 1029,1034 (Del. 1998) (citing Solomon v. Pathe Communications Corp., 672 A.2d 35, 38 (Del.1996))).
113
Spence v. Funk, 396 A.2d 967, 968 (Del. 1978)).
114
Central Mortgage Co. v. Morgan Stanley Mortgage Capital Holdings LLC, 27 A.3d 531, 535 (Del. 2011).
24
in favor of the party opposing the motion.”115 Dismissal of a claim is warranted
“only if it appears with reasonable certainty that the plaintiff could not prove any set
of facts that would entitle [her] to relief.”116 Notwithstanding this liberal standard,
the Court is required to scrutinize the Complaint. In considering whether dismissal
is appropriate, the Court need not accept conclusory assertions that are unsupported
by specific factual allegations.117 Nor is it required to “accept every strained
interpretation of the allegations proposed”118 or draw “unreasonable inferences in
the plaintiff’s favor.”119
IV. ANALYSIS
The issues before the Court are (1) whether the fiduciary claims alleged in the
Complaint are within the exclusive jurisdiction of the Court of Chancery or may
entertained by this Court; (2) whether all the claims set forth in the Complaint are
fiduciary in nature and remedy; and (3) whether the allegations in the Complaint
state a claim upon which relief may be granted. For the reasons explained below,
the Court grants the motion to dismiss certain counts (and portions of counts)
115
Id.
116
Doe, 884 A.2d at 458 (citing Spence, 396 A.2d at 968)); Central Mortgage, 27 A.3d at 536 (a complaint will survive if the plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof).
117
Ramunno, 705 A.2d at 1034.
118
Malipede v. Townson, 780 A.2d 1075, 1083 (Del. 2001); Cooper v. Cadia Pike Creek, 2021 WL 409156, at *1 (Del. Super. Feb. 4, 2021).
119
Windsor I, LLC v. CWCapital Asset Mgt., LLC, 238 A.3d 863, 871 (Del. 2020).
25
alleging of breach of fiduciary duty based upon this Court’s lack of jurisdiction, but
denies the remainder of the motion.
A. Fiduciary claims are within the statutory jurisdiction of the Court
of Chancery.
The Court of Chancery has statutory jurisdiction over breach of fiduciary duty
claims against the guardian of a disabled adult separate from the Court’s inherent
jurisdiction over matters of equity.120 “The express language of 12 Del. C. § 3901121
specifically vests the Court of Chancery with jurisdiction to appoint guardians for
disabled persons.”122 Conversely, there is no statute vesting Superior Court with
jurisdiction over adult guardianships.123 Instead, “[t]he Superior Court has
jurisdiction over matters in law.”124 This is nothing particularly new. Indeed,
“guardianship[s have] traditionally fallen within the jurisdiction of . . . equity courts,
both with respect to their English common-law antecedents and in [their] current
120
In re Markel, 254 A.2d 236, 238 (Del. 1969) (citations omitted).
121
Section 3901empowers the Court of Chancery “to appoint guardians for the person or property, or both, of any person with a disability.” 12 Del. C. § 3901(a).
122
In re Arzuaga-Guevara, 794 A.2d 579 (Del. 2001).
123
Delaware Health Corp. v. Grim, 2014 WL 6666570, at *2 (Del. Super. Nov. 19, 2014) (citing Del. Const. art. IV, § 7 and 10 Del. C. § 541).
124
Compare with In re Arzuaga-Guevara, 794 A.2d 579 (recognizing the Family Court of Delaware was granted concurrent jurisdiction over minor guardianships by statute).
26
statutory incarnation.”125 Accordingly, this Court has no jurisdiction over the
fiduciary claims.
B. The fiduciary claims in the Complaint are dismissed for lack of
jurisdiction.
Defendants argue they are entitled to dismissal of the entire Complaint
because all the acts or omissions alleged in the Complaint concern fiduciary duties
Defendants owed to Lila, as the guardian of her property, over which the Court of
Chancery has exclusive subject matter jurisdiction.126 In opposition, Plaintiff first
argued this Court has jurisdiction over all the claims alleged in the Complaint127
because they are legal claims, seeking monetary damages under common law and
statutory tort theories;128 however, Plaintiff softened that stance at oral argument
regarding the claims in Counts V and VI.129
A party’s identification of a particular claim as legal or fiduciary in nature is
not dispositive on the issue of jurisdiction. Subject matter jurisdiction is “not
125
IMO A.N., 2020 WL 7040079, at *8 (Del. Ch. Nov. 30, 2020) (quoting IMO J.T.M., 2014 WL 7455749, at *1 (Del. Ch. Dec. 31, 2014)).
126
Mot. ¶ 7 (citing In the Matter of A.N., 2020 WL 7040079, *13 (Del. Super.); Dickerson, 2015 WL 447607, *7 (citing McMahon v. New Castle Assoc., 532 A.2d 601, 602 (Del. Ch. 1987) (Court of Chancery has exclusive subject matter jurisdiction to adjudicate a breach of fiduciary claim)). 127
Resp. at 2-3.
128
Resp. at 3-4.
129
Plaintiff acknowledged Count V and portions of Count VI were claims for breach of fiduciary duty in her oral argument. See Willis v. Supportive Care, et al., C.A. No. N25C-10-217, Transcript of January 22, 2026 Motions Hearing [“Tr.”] 21:22- 22:6.
27
conferred simply by the ‘incantation of magic words.’"130 Nor is “[t]he mere fact
that one of the parties is a fiduciary, trustee or guardian…suffic[ient] to confer
jurisdiction upon the Court of Chancery” over a cause in which the claim is purely
legal.131 “There is nothing in the statute which in terms purports to confer upon the
Court of Chancery jurisdiction to decide all controversies which the guardian may
provoke through his efforts to assemble the ward’s property.”132 Instead, to
determine the question of subject matter jurisdiction, this Court must assess the
“nature of the wrong alleged and the remedy available.”133
Count V of the Complaint is a direct claim the Defendants breached their
fiduciary duties over which the Court of Chancery has statutory jurisdiction.
Plaintiff alleges Defendants breached their duties of loyalty, care, and diligence
under 12 Del. C. § 3923, as well as the Court of Chancery’s March 5, 2020 Order.134
It follows that based upon the nature of the claim set forth in Count V, exclusive
jurisdiction lies in the Court of Chancery. Plaintiff acknowledged as much during
oral argument on the motion to dismiss.135
130
Grim, 2014 WL 6666570, at *2 (citing McMahon, 532 A.2d at 603).
131
Id. (emphasis added) (citing In re Markel, 254 A.2d at 239).
132
Markel, 254 A.2d at 239.
133
Grim, 2014 WL 6666570, at *2 (citing McMahon, 532 A.2d at 603).
134
Compl. ¶¶ 84-94.
135
Tr. 21:22- 22:6 (“[I]n terms of fiduciary duty, arguably, yes, it is clear that breach of fiduciary duty claims belong in the Court of Chancery. We don’t dispute that. Our case does not hinge on Count 5 and the elements of Count 6, on negligence per se that refer to guardian duties.”)
28
But the same is also true for other counts in the Complaint alleging breaches,
by acts or omissions, of fiduciary duties. Problematically, however, the Complaint
blends its claims. Each claim incorporates by reference all the preceding facts when
many of those facts relate to fiduciary duties alone. For example, Count I is a
survival action brought on behalf of Lila’s estate under 10 Del. C. § 3701, for her
personal injuries and death due to SCS’s “alleged failure to provide Lila with access
to a phone, and adequate food or water.”136 Any obligation the Guardian had to
provide Lila with a phone, food, or water arises from its fiduciary duties to her as
the Court of Chancery’s ward. Count II realleges and incorporates by reference all
the preceding facts – and Count I.137 Count III alleges common law negligence under
the Restatement (Second) of Torts § 323, in part, based upon the Guardian’s duty to
perform his fiduciary obligations associated with the property.138 Count IV, a
136
Compl. ¶¶ 49-53.
137
See Compl. ¶ 54.
138
Plaintiff alleges Defendants breached their common law duty under § 323 by:
a. Disregarding repeated reports of uncollected Meals on Wheels deliveries;
b. Failing to monitor status of the Residence;
c. Failing to maintain contact with Decedent;
d. Failing to act in the best interest of their Ward, the Decedent;
e. Disregarding clear indications of imminent harm to Decedent;
f. Failing to intervene and mitigate known danger earlier;
g. Failing to ensure the Residence was habitable;
h. Defendants omissions or acts induced reliance on the Plaintiff / Decedent,
foregoing other help;
29
common law negligence claim under Restatement (Second) of Torts § 324A 139 first
alleges Defendant agreed and failed to conduct a welfare check, but then also relies
upon facts pertinent to fiduciary obligations associated with the property.140 Count
VI alleges negligence per se based upon Defendants’ violation of fiduciary duties
set forth in 12 Del. C. Chapter 39, Guardianship,141 and engaging in a criminal act
against a vulnerable adult.142 So while Count VI is predicated on the breach of a
i. Defendants failed to act as reasonably prudent guardians of the property who
voluntarily offered to do a welfare check on the Decedent. (Compl. ¶ 68).
139
Compl. ¶¶ 70-83.
140
Plaintiff alleges Defendants breached their common law duty under § 324A by:
a. Disregarding repeated reports of uncollected Meals on Wheels deliveries;
c. Failing to monitor status of the Residence;
d. Failing to maintain contact with Decedent;
e. Failing to act in the best interest of its Ward, the Decedent;
f. Disregarding clear indications of imminent harm to Decedent[.]
141
See Compl. ¶ 96 (alleging violation of 12 Del. C. § 3921(c) by failing to do “whatever [was]
necessary for the care, preservation and increase” of the estate); ¶ 97 (alleging violation of
12 Del. C. § 3922(b) by failing to deposit ward funds in properly titled, segregated accounts
and promptly safeguard those assets; ¶¶ 98-99 (alleging violation of 12 Del. C. § 3923(e)
by failing to manage and apply estate assets “solely for the ward’s benefit” and “failing to
obtain necessary Court approval for major disbursements”); ¶ 100 (alleging violation of 12
Del. C. §3910(a) by failing to report to the Department of Health and Social Services that
an “impaired adult” was in need of protective services; ¶¶ 101-102 (alleging violation of
12 Del. C. §3913(a) by knowingly or recklessly neglecting and financially exploiting an
impaired adult” or “knowingly or recklessly neglecting and financially exploiting an
impaired adult, conduct made a Class A felony when the neglect results in death.” 142
See Compl. ¶ 103 alleging Defendants violated 11 Del. C. §§ 1105(a), (c), (d) “by recklessly
endangering, neglecting, and misapplying the property of a vulnerable adult.”
30
fiduciary duties, as evidence to establish negligence per se, it calls upon this Court
to first make findings that fall within the statutory purview of the Court of Chancery.
With that said, however, Plaintiff’s assertion of fiduciary claims alongside
legal claims alleging acts or omissions by a tortfeasor, who happens to be a guardian,
does not automatically convert the overall controversy to one over which the Court
of Chancery has exclusive jurisdiction.143 The Court of Chancery is not the only
place where a guardian may sue or be sued and guardians do not have blanket
immunity from all civil lawsuits just because they are acting in a fiduciary capacity
during the relevant time frame.
Portions of the claims alleged in Counts I, II, III, IV, VI, and VII, although
germinated during the course of fiduciary relationship, do not exclusively allege
fiduciary claims. Plaintiff claims the ward was injured and died as a result of the
guardian’s failure to perform voluntarily assumed duties on behalf of the ward and
the New Castle County Police (“NCCPD”) outside the fiduciary relationship.
Additionally, the remedies sought are compensatory and punitive damages, whereas
the most severe remedy that may be imposed by the Court of Chancery for a breach
of fiduciary duty is removal of the fiduciary or a fine.144 Because portions of Counts
143
See Markel, 254 A.2d at 239.
144
See IMO J.C.E., C.M. 16615-N-SEM (Del. Ch. Feb. 15, 2022) (holding the most severe remedy in the Court of Chancery’s arsenal was removal of one or both of the co-guardians and dismissing all claims relating to how the co-guardians discharged their duties prior to the ward’s death).
31
I, II, III, IV, and VII are causes of action that involve legal rights and remedies, at
this early juncture, this Court concludes plaintiff has made a sufficient showing they
are within the Superior Court's subject matter jurisdiction and, accordingly, retains
jurisdiction over them.
In sum, because Count V of the Complaint is a direct claim of breach of
fiduciary duty, and portions of Counts I, II, III, IV, and VI are predicated upon the
breach of fiduciary duties, over which the Court of Chancery has statutory
jurisdiction, the Court GRANTS dismissal as to the entirety of Court V and the
above-referenced portions of Counts I, III, VI, VI, and VII subject to the plaintiffs'
right to transfer these claim to the Court of Chancery under 10 Del. C. § 1902 within
sixty days. But to the extent Plaintiff’s legal claims fall outside the guardian’s
fiduciary duties, this Court retains jurisdiction. Thus, Defendants’ Motion as to the
portions of Counts I, II, III, IV, VI, and VII that allege purely legal claims is
DENIED.
C. Plaintiff alleges facts sufficient to support a claim for negligence under
the Restatement (Second) of Torts.
Defendants further argue dismissal of the entire Complaint is warranted under
Rule 12(b)(6) because Plaintiff fails to state a claim for negligence upon which relief
may be granted. Specifically, Defendants contend the Complaint fails to plead a
duty of care, because any duty Defendants owed to Lila’s person was terminated by
32
the Court of Chancery’s Order of April 13, 2021,145 and any duty Defendants owed
to guard her property was fiduciary in nature.146 In opposition, Plaintiffs argue there
are sufficient facts in the Complaint to support a claim Defendants voluntary
undertook legal duties under Sections 323 and 324A of the Restatement (Second) of
Torts outside their fiduciary duties.147 Plaintiff argues the critical period that the
Court should consider is December 21 through December 29, 2023, during which
Defendant Merlino voluntarily agreed to conduct a welfare check on Lila and then
failed to do so for eight days.148 The parties’ assertions require critical review, and
the Court moves with caution given the incomplete record before it at this early stage
in the proceedings.
1. Negligence Generally
In order for Plaintiff or Lila’s estate to recover damages under Delaware’s
survival or wrongful death statutes, Plaintiff must show Defendants were
negligent.149 To bring a successful negligence claim, a plaintiff must prove that: (1)
145
Mot. ¶¶ 8-9 (citing Compl. at ¶ 25 and Compl., Ex. J (stating, “[Lila] shall be free to make decisions regarding her person without the interference or oversight of the guardian or Ms. Willis.”).
146
Id.
147
Resp. at 5-6.
148
Id.
149
Rogers v. Christina Sch. Dist., 73 A.3d 1, 7 (Del. 2013)(citing 10 Del. C. § 3721(5)(stating that “[w]rongful act” means “an act, neglect or default including a felonious act which would have entitled the party injured to maintain an action and recover damages if death had not ensued”) and id. § 3722(c) (“If a person whose wrongful act caused the death of another dies before an
33
the defendant owed a duty of care, (2) the actor breached that duty, and (3) the breach
proximately caused the injury to the plaintiff.150 “Negligent behavior is usually
defined as the failure to meet the standard of care which the law requires. However,
liability for negligence is limited by the scope of the legally defined duty.” 151 That
is, “before liability may be imposed, ‘an antecedent duty of care with respect to the
interest involved must be established.’”152 Plaintiff bears the burden of to establish
defendant owed a legally recognized duty of care to the plaintiff.153 “Absent such
duty, a defendant cannot be held liable for negligence, no matter how harmful or
reprehensible his conduct may be.”154 Whether a duty exists is a question of law for
this Court to decide.155 “If the trial judge finds the defendant owed no duty of care
to the plaintiff, the defendant is entitled to judgment as a matter of law.”156
action under this section is commenced, the action may be maintained against a personal representative”)).
150
Murray v. Mason, 244 A.3d 187, 194 (Del. Super. Ct. 2020) (citing Doe v. Bradley, 2011 WL 290829, at *7 (Del. Super. Jan. 21, 2011) (“Bradley I”).
151
Rogers, 73 A.3d at 7 (quoting Furek v. Univ. of Delaware, 594 A.2d 506, 516 (Del. 1991)). 152
Rogers, 73 A.3d at 7 (quoting Furek, 594 A.2d at 516).
153
See Restatement (Second) of Torts § 395; Massey-Ferguson, Inc. v. Wells, 383 A.2d 640, 642 (Del.1978) (citing § 395 that the plaintiff holds the burden to establish that the defendant failed to exercise the care of a reasonably prudent person under these circumstances). 154
Doe v. Massage Envy Franchising, LLC, 2024 WL 3220281, at *15 (Del. Super. Ct. June 28, 2024).
155
Doe v. Massage Envy, 2024 WL 3220281, at *15 (citing Murray v. Mason, 244 A.3d at 194). 156
Navaretta v. Duong, 2024 WL 40033401, at * (Aug. 29, 2024) (citing Culver v. Bennett, 588 A.2d 1094, 1098 (Del. 1991)).
34
To determine whether there is a duty of care, Delaware courts generally follow
the guidance of the Restatement (Second) of Torts.157 Section 284 states: “Negligent
conduct may be either: (a) an act which the actor as a reasonable man should
recognize as involving an unreasonable risk of causing an invasion of an interest of
another, or (b) a failure to do an act which is necessary for the protection or assistance
of another and which the actor is under a duty to do.”158 The Restatement draws a
distinction between affirmative acts and omissions.159 Unlike a duty that arises in
performing an affirmative act, “one who merely omits to act” generally has no duty
to act, unless “there is a special relation between the actor and the other which gives
rise to the duty.”160 The duty to act is “largely confined to [ ] situations in which
there was some special relation between the parties, on the basis of which the
defendant was found to have a duty to take action for the aid or protection of the
plaintiff.”161 Section 314 further states, that, “[t]he fact that the actor realizes or
should realize that action on his part is necessary for another's aid or protection does
not of itself impose upon him a duty to take such action.”162 However, the
Restatement Second also provides exceptions to this general “no duty to act” rule
157
Rogers, 73 A.3d at 7.
158
Id.
159
Rogers, 73 A.3d at 7 (citing Restatement (Second) of Torts § 302 cmt. a.). 160
Id.
161
Id. at 8.
162
Restatement (Second) of Torts § 314.
35
based on the actor's “performance” of an undertaking, including those set forth in §§
323 and 324A .163
2. Restatement (Second) of Torts § 323 and § 324A
Plaintiff argues Defendants assumed duties of care under the Restatement
(Second) of Torts § 323 and 324A when Defendant Merlino allegedly told the police
he would seek to have the locks changed on the home and gain entry.164 Even taking
this fact as true, Defendant argues the Supreme Court’s decision in Rogers v.
Christina School District165 forecloses any liability because Section 323 is limited
to property owners—and, here, the Guardian did not own the property at issue.166
Section 323 of the Restatement (Second) of Torts, Negligent Performance of
an Undertaking to Render Services, sets forth the requirements for an assumed
duty of care:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
protection of the other's person or things, is subject to liability to the
other for physical harm resulting from his failure to exercise
reasonable care to perform his undertaking, if:
(a) his failure to exercise such care increases the risk of
such harm, or
163
Anderson v. Russell, 2012 WL 1415911 (Del. Super. Apr. 18, 2012) (recognizing §§ 323, 324, and 324A as exceptions).
164
See Compl. Counts III and IV.
165
Rogers, 73 A.3d at 7.
166
Supplement in Support of Motion of Defendants to Dismiss Plaintiff’s Complaint [“Defs.’ Reply”] at 9 (citing Rogers, 73 A.3d at 9).
36
(b) the harm is suffered because of the other's reliance upon
the undertaking.167
Section 324A, Liability to Third Person for Negligent Performance of
Undertaking, states:
One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of a third
person or his things, is subject to liability to the third person for physical harm
resulting from his failure to exercise reasonable care to protect his
undertaking, if
(a) his failure to exercise reasonable care increases the risk of such
harm, or
(b) he has undertaken to perform a duty owed by the other to the
third person, or
(c) the harm is suffered because of reliance of the other or the third
person upon the undertaking.168
This Court acknowledges that in Rogers, the Supreme Court held, “Section 323 only
addresses the duty of care to a person physically on the property of the entity owing
the duty,”169 but its analysis was far more nuanced than Defendants assert here.
Relying on its prior decisions in Jardel v. Hughes170 and Furek v. University of
Delaware,171 the Rogers Court considered the liability of another landowner, a
167
Rogers, 73 A.3d at 8 (citing Restatement (Second) of Torts § 323 (1965).
168
Restatement (Second) of Torts § 324A (1965).
169
Rogers, 73 A.3d at 9 (emphasis added).
170
Jardel Co., Inc. v. Hughes 523 A.2d 518, 524 (Del. 1987).
171
Furek, 594 A.2d at 516.
37
school district, for the injuries and death of a student who committed suicide off
school grounds.172 In Jardel, the Court had previously concluded a landowner,
shopping mall owner, could not be held liable for injuries sustained by a tenant’s
employee who was abducted in the mall parking lot and later raped.173 The crucial
inquiry for the Court in Jardel had been the degree to which the shopping mall
owner, who voluntarily undertook a security program, should have foreseen the
danger at issue.174 Conversely, in Furek, the Court concluded a different landowner,
a university, could be held liable for injuries sustained by a student in a fraternity
hazing incident that occurred on university property, even though the injury had been
sustained by a fraternity pledge in a house owned by the national fraternity and
controlled by fraternity members.175 Like Jardel, Furek turned on foreseeability of
the risk of harm.176 And because the Court found “the university was aware of the
dangers of hazing and repeatedly emphasized its policy of discipline for hazing
infractions, but did nothing to intervene or prevent the hazing incident,” liability
under § 323 was actionable.177 While the Furek Court noted “an insurer is not an
insurer of the safety of its students nor a policeman of student morality, [it]
172
Rogers, 73 A.3d at 9.
173
Id. (citing Jardel, 523 A.2d at 524).
174
Id.
175
Id. (citing Furek, 594 A.2d at 520).
176
Id. (citing Furek, 594 A.2d at 514).
177
Rogers, 73 A.3d at 9 (citing Furek, 594 A.2d at 514).
38
nonetheless, . . .has a duty to regulate and supervise foreseeable dangerous
activities occurring on its property.”178 Applying the holdings of Jardel and Furek
to the facts of Rogers, another landlord-invitee case, the Court concluded:
Section 323 only addresses the duty of care to a person physically on
the property of the entity owing the duty. In both Jardel and Furek,
liability could be imposed because the injury from a reasonably
foreseeable harm occurred on the defendants' property. Here it is
conceded that the injury occurred off of school grounds. Section 323 is
inapplicable.179
Subsequent cases considering the liability of landlords for injuries that occurred
offpremises have appropriately hewed to the Court’s holding Rogers. These include
Murray v. Mason,180 Buford v. Ligon,181 and Connolly v. Theta Chi Fraternity, Inc.182
Yet there is nothing in the text of Sections 323, 324A, or their Comments that
limit liability to property owners. Moreover, post-Rogers, this Court’s holdings in
178
Id. (citing Furek, 594 A.2d at 522).
179
Id. at 9.
180
Murray, 244 A.3d at 197 (holding a dog bite victim who brought a negligence action against a nonprofit animal shelter, after being attacked in a private residence months after the dog was released from the shelter, and who had not alleged any facts suggesting that she was ever on the property of the shelter failed to state a claim under § 323).
181
Buford v. Ligon, 2021 WL 5630048, at *7 (Del. Super. Nov. 30, 2021) (holding a duty existed under §323 where a university’s affirmative action to provide security on university-owned property could be found to increase the risk of harm to invitees on the property). 182
Connolly v. Theta Chi Fraternity, Inc., 2018 WL 1137587, at *8 (Del. Super. Feb. 28, 2018) (holding there was no liability for a property owner under § 323 where injury occurred off property).
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Truitt v. Winder,183 Rogerson v. Delaware Surgical Group, P.A.,184 Anderson v.
Russell,185 and Doe 30’s Mother v. Bradley186 had nothing to do with the ownership
of property in determining the applicability of § 323. Accordingly, this Court cannot
conclude Rogers or its progenitors, Jardel and Furek, stand for the proposition that
§ 323 of the Restatement is limited to premises liability. In fact, the Furek Court
defined the application of Section 323 far more broadly:
In our view, Restatement § 323 offers a more persuasive rationale for
University liability, and a jury instruction invoking § 323 was
unsuccessfully sought by Furek at trial. . . § 323 addresses the duty
owed by one who assumes direct responsibility for the safety of another
through the rendering of services in the area of protection. As the
Restatement comment makes clear, this section “applies to any
undertakings to render service to another which the defendant should
recognize as necessary for the protection of the other person” and the
harm to be protected against results from negligence in “performance
of the undertaking or from failure to exercise reasonable care to
complete it or to protect the other when he discontinues it.” If one
“takes charge and control of [a] situation, he is regarded as entering into
a relation which is attenuated with responsibility.” W.
Prosser, Handbook of Torts, 56 (2nd ed. 1972). This provision of tort
law is encapsulated in Restatement § 323 and has been recognized by
this Court. See Jardel Co. v. Hughes, 523 A.2d 518, 524 (Del. 1987).187
Further, in Furek, the Court frowned upon the University’s attempt to disclaim
liability based upon a lack of direct control over the property at issue:
183
Truitt v. Winder, 2025 WL 3487494 (Del. Super. Ct. Dec. 4, 2025).
184
Rogerson v. Delaware Surgical Group, P.A., 2025 WL 2491252 (Del. Super. Aug. 29, 2025). 185
Anderson v. Russell, 2012 WL 1415911 (Del. Super. Apr. 18, 2012).
186
Doe 30’s Mother v. Bradley, 58 A.3d 429 (Del. Super. 2012).
187
Furek, 594 A.2d at 520.
40
Premises control is not determined in absolute terms. A landowner may
exercise control in certain areas while relinquishing it in others.
In Jardel, this Court, in discussing the issue of landowner control in a
parent-subsidiary context, noted that where the parent corporation
exercised “direct operational control in several management areas,
including security decisions....the jury was entitled to draw the
inference, at least in the area of security arrangements that the
landowner-parent exercised direct control. [Jardel,] 523 A.2d at 526-527. If control includes authority to direct, restrict and regulate, the
University with its significant involvement in the regulation of
fraternity life, particularly in the area of hazing, may be deemed to have
exercised supervision over the use of its property to permit “at least the
inference of control.” For the purpose of testing the sufficiency of the
evidence to withstand the granting of a directed verdict, Furek was
entitled to the benefit of that inference.188
Because the facts of the case sub judice do not concern the liability of a landowner
for an off-premises injury, this Court concludes Rogers does not control the outcome.
Here, Count III (§ 323) alleges Defendant Merlino, outside the scope of his
fiduciary duties as Guardian, made a gratuitous undertaking to render a service to
Lila (entry to the property), which he should have recognized was necessary for
Lila’s protection or the protection of her property, and his failure to exercise such
care may have increased the risk of such harm. Likewise, Count IV (§ 324A) alleges
Defendant Merlino, outside the scope of his fiduciary duties, made a gratuitous
undertaking to render a service to NCCPD (entry to the property to check on Lila’s
welfare), which he should have recognized was necessary for Lila’s protection or the
protection of her property, and his failure to exercise reasonable care in that
188
Id. at 522.
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undertaking, may have increased the risk of such harm to Lila, or he undertook to
perform a duty owed by the NCCPD to Lila, or a harm was suffered because of the
reliance of NCCPD. Thus, taking the facts of the Complaint as alleged and the
reasonable inferences that flow from them as true, as this Court is required to do at
this juncture, Plaintiff has adequately stated a claim under Sections 323 and 324A of
the Restatement (Second) of Torts.
Discovery is necessary to sufficiently develop the record to determine whether
these claims may ultimately succeed as a matter of law. But right now, it is simply
too early to tell, and the Court is unwilling to grant dismissal based on the limited
record that exists. Accordingly, Defendants’ Motion to Dismiss Counts I, II, III, IV,
VI, and VII for failure to state a claim is DENIED.
III. CONCLUSION
Defendants' motion to dismiss the Complaint’s claims of breach of fiduciary
duty is GRANTED, without prejudice, for lack of subject matter jurisdiction
pursuant to Rule 12(b)(1), unless Plaintiffs seeks leave within 60 days to transfer the
matter to the Court of Chancery. The remainder of Plaintiffs' motion is DENIED.
Because the Complaint blends fiduciary and legal claims within every Count, except
Count V, the parties are to meet and confer regarding which portions of each claim
must be excised from the Complaint and prepare an appropriate form of order.
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IT IS SO ORDERED.
/s/ Kathleen M. Vavala
The Honorable Kathleen M. Vavala
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