IN THE SUPREME COURT OF THE STATE OF DELAWARE
JOANNE MONDRAGON, as parent § and guardian of J.W., a minor, § § No. 31, 2026 Plaintiff Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § C.A. No. K24C-05-023 THE BOARD OF EDUCATION OF § THE COLONIAL SCHOOL § DISTRICT, § § Defendant Below, § Appellee. §
Submitted: July 8, 2026 Decided: July 22, 2026
Before SEITZ, Chief Justice; TRAYNOR and LEGROW, Justices.
ORDER
After consideration of the parties’ briefs and the record on appeal, it appears
to the Court that:
(1) Joanne Mondragon, as parent and guardian of J.W., a minor, appeals
from the Superior Court’s order granting summary judgment in favor of the Board
of Education of the Colonial School District (the “District”) on the basis of immunity
under the Delaware State Tort Claims Act (“DSTCA”). Mondragon’s claim arises
from an assault on her five-year-old son by another student aboard a school bus.
Mondragon contends that the Superior Court erred in holding that the District’s placement of the bus aide, Joseph Bogia, was a discretionary act rather than a
ministerial one and in deciding as a matter of law that the District was not grossly
negligent. Because Delaware law treats hiring and assignment decisions and the
manner and method of student supervision as discretionary acts, and because the
record—viewed in the light most favorable to Mondragon—would not permit a
reasonable jury to find an extreme departure from the ordinary standard of care, we
affirm the Superior Court’s decision that the District was immune under the DSTCA.
(2) J.W. is a child with autism who is nonverbal. During the 2023–2024
school year, he rode District Bus 276, a bus that carried twelve to thirteen students
with special needs—each with an Individualized Education Program (“IEP”). The
bus was staffed by a driver and a single bus aide, Mr. Bogia.1 On October 5, 2023,
during the roughly twenty-three-minute bus ride, another student (“Student 1”)
repeatedly struck J.W. with his fists and elbows, pulled his hair, and ultimately
stabbed him in the back with a pencil, causing a puncture wound.2 Because J.W. is
nonverbal, he could not call out for help.3 Neither Mr. Bogia nor the driver observed
the assault; Mr. Bogia was attending to a different student who was experiencing an
outburst at the front of the bus. The driver believed that Student 1 waited to act until
1 App. to Appellant’s Opening Br. at A32, A55, A82–84. 2 Id. at A23–26, A54–55, A85–86. 3 Id. at A22, A49, A54–55, A70.
2 Mr. Bogia’s attention was diverted.4 The attack was discovered only when another
child noticed blood on J.W.’s clothing as he exited the bus.5 J.W. sustained the
puncture wound, scratches, bruises, and significant psychological injury.6
(3) The District hired Mr. Bogia in 2016, and he had served as an aide for
approximately seven years when the incident occurred.7 Mondragon identifies
several features of Mr. Bogia’s background that, in her view, rendered him unfit: he
had no prior childcare or special-education experience; he was hired based on the
recommendation of a former girlfriend who worked for the District; he was unable
to read and therefore could not independently read the bus aide guidelines or the
students’ IEPs; he had a DUI conviction from roughly a decade before his hiring; he
had been suspended from high school as a teenager for bringing a knife to school; in
January 2023 he was suspended without pay for failing to report that a child had
tipped over in a stroller; and, after the incident involving J.W., he was charged with
offensive touching in connection with a separate matter.8 The District responds that
Mr. Bogia completed its standard hiring and onboarding process, including a
background check and a child-protection registry search, and that he received two
4 Id. at A55, A86. 5 Id. at A87. 6 Id. at A35–36. 7 Id. at A78–79. 8 Id. at A21–22, A29–31, A78–79, A82–84, A90–91; App. to Appellee’s Answering Br. at B5.
3 days of in-person training, an hour of instruction on properly securing students, and
a test route before being placed on Bus 276.9
(4) The Superior Court granted summary judgment on the basis of
immunity. Under the DSTCA, a public employee is entitled to immunity only if the
act or omission (1) was discretionary rather than ministerial; (2) was done in good
faith and in the belief that the public interest would be best served; and (3) was done
without gross or wanton negligence.10 Mondragon challenges the first and third
elements on appeal.
(5) We review a grant of summary judgment de novo to determine whether
the undisputed facts, viewed in the light most favorable to the nonmoving party,
entitle the moving party to judgment as a matter of law.11 Whether a particular act
is discretionary or ministerial under the DSTCA is a question of law that we also
review de novo.12
(6) The Superior Court correctly held that the District’s placement of Mr.
Bogia was a discretionary act. A ministerial act is one performed in a prescribed
manner without using individual judgment, whereas an act is discretionary when the
actor faces “a range of reasonable choices” in carrying it out; the distinction is
9 Appellee’s Answering Br. at 6; App. to Appellee’s Answering Br. at B29, B41–44. 10 10 Del. C. § 4001. 11 Handler Corp. v. Tlapechco, 901 A.2d 737, 743 (Del. 2006). 12 Sussex Cnty. v. Morris, 610 A.2d 1354, 1357–59 (Del. 1992).
4 “always one of degree,” turning on the presence of rules or regulations that minimize
opportunities for independent action.13 Delaware courts have consistently held that
the decision to hire a particular individual is discretionary.14 And although the
general duty to supervise students is ministerial, the manner and method by which
to provide adequate supervision is discretionary.15 What level of supervision is
adequate on the bus route, and which aide can best provide it, are matters of degree
and judgment, not the mechanical execution of a prescribed task.16
(7) The Superior Court also correctly held that no reasonable jury could
find gross or wanton negligence. Gross negligence, which we have equated with
criminal negligence, is “negligence representing an extreme departure from the
13 Greenfield ex rel. Ford v. Miles, 211 A.3d 1087, 1099 (Del. 2019) (quoting Morris, 610 A.2d at 1359); Simms v. Christiana Sch. Dist., 2004 WL 344015, at *8 (Del. Super. Jan. 30, 2004). 14 Gutierrez v. Advanced Student Transp., Inc., 2015 WL 4460342, at *4 (Del. Super. July 14, 2015) (“Delaware courts interpreting the DSTCA have held that the decision to hire is a discretionary decision.”); Simms, 2004 WL 344015, at *8 (concluding that a district’s decisions regarding the hiring, training, and supervision of its employees are discretionary and therefore immune absent gross or wanton negligence). 15 Tews v. Cape Henlopen Sch. Dist., 2013 WL 1087580, at *4 (Del. Super. Feb. 14, 2013); Jester v. Seaford Sch. Dist., 1991 WL 269899, at *4 (Del. Super. Nov. 4, 1991), aff’d, 610 A.2d 725, 1992 WL 151786 (Del. 1992) (TABLE). 16 Mondragon nevertheless argues that the heightened regulatory environment of a special-needs school makes the decision to provide adequate supervision ministerial.
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
JOANNE MONDRAGON, as parent § and guardian of J.W., a minor, § § No. 31, 2026 Plaintiff Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § C.A. No. K24C-05-023 THE BOARD OF EDUCATION OF § THE COLONIAL SCHOOL § DISTRICT, § § Defendant Below, § Appellee. §
Submitted: July 8, 2026 Decided: July 22, 2026
Before SEITZ, Chief Justice; TRAYNOR and LEGROW, Justices.
ORDER
After consideration of the parties’ briefs and the record on appeal, it appears
to the Court that:
(1) Joanne Mondragon, as parent and guardian of J.W., a minor, appeals
from the Superior Court’s order granting summary judgment in favor of the Board
of Education of the Colonial School District (the “District”) on the basis of immunity
under the Delaware State Tort Claims Act (“DSTCA”). Mondragon’s claim arises
from an assault on her five-year-old son by another student aboard a school bus.
Mondragon contends that the Superior Court erred in holding that the District’s placement of the bus aide, Joseph Bogia, was a discretionary act rather than a
ministerial one and in deciding as a matter of law that the District was not grossly
negligent. Because Delaware law treats hiring and assignment decisions and the
manner and method of student supervision as discretionary acts, and because the
record—viewed in the light most favorable to Mondragon—would not permit a
reasonable jury to find an extreme departure from the ordinary standard of care, we
affirm the Superior Court’s decision that the District was immune under the DSTCA.
(2) J.W. is a child with autism who is nonverbal. During the 2023–2024
school year, he rode District Bus 276, a bus that carried twelve to thirteen students
with special needs—each with an Individualized Education Program (“IEP”). The
bus was staffed by a driver and a single bus aide, Mr. Bogia.1 On October 5, 2023,
during the roughly twenty-three-minute bus ride, another student (“Student 1”)
repeatedly struck J.W. with his fists and elbows, pulled his hair, and ultimately
stabbed him in the back with a pencil, causing a puncture wound.2 Because J.W. is
nonverbal, he could not call out for help.3 Neither Mr. Bogia nor the driver observed
the assault; Mr. Bogia was attending to a different student who was experiencing an
outburst at the front of the bus. The driver believed that Student 1 waited to act until
1 App. to Appellant’s Opening Br. at A32, A55, A82–84. 2 Id. at A23–26, A54–55, A85–86. 3 Id. at A22, A49, A54–55, A70.
2 Mr. Bogia’s attention was diverted.4 The attack was discovered only when another
child noticed blood on J.W.’s clothing as he exited the bus.5 J.W. sustained the
puncture wound, scratches, bruises, and significant psychological injury.6
(3) The District hired Mr. Bogia in 2016, and he had served as an aide for
approximately seven years when the incident occurred.7 Mondragon identifies
several features of Mr. Bogia’s background that, in her view, rendered him unfit: he
had no prior childcare or special-education experience; he was hired based on the
recommendation of a former girlfriend who worked for the District; he was unable
to read and therefore could not independently read the bus aide guidelines or the
students’ IEPs; he had a DUI conviction from roughly a decade before his hiring; he
had been suspended from high school as a teenager for bringing a knife to school; in
January 2023 he was suspended without pay for failing to report that a child had
tipped over in a stroller; and, after the incident involving J.W., he was charged with
offensive touching in connection with a separate matter.8 The District responds that
Mr. Bogia completed its standard hiring and onboarding process, including a
background check and a child-protection registry search, and that he received two
4 Id. at A55, A86. 5 Id. at A87. 6 Id. at A35–36. 7 Id. at A78–79. 8 Id. at A21–22, A29–31, A78–79, A82–84, A90–91; App. to Appellee’s Answering Br. at B5.
3 days of in-person training, an hour of instruction on properly securing students, and
a test route before being placed on Bus 276.9
(4) The Superior Court granted summary judgment on the basis of
immunity. Under the DSTCA, a public employee is entitled to immunity only if the
act or omission (1) was discretionary rather than ministerial; (2) was done in good
faith and in the belief that the public interest would be best served; and (3) was done
without gross or wanton negligence.10 Mondragon challenges the first and third
elements on appeal.
(5) We review a grant of summary judgment de novo to determine whether
the undisputed facts, viewed in the light most favorable to the nonmoving party,
entitle the moving party to judgment as a matter of law.11 Whether a particular act
is discretionary or ministerial under the DSTCA is a question of law that we also
review de novo.12
(6) The Superior Court correctly held that the District’s placement of Mr.
Bogia was a discretionary act. A ministerial act is one performed in a prescribed
manner without using individual judgment, whereas an act is discretionary when the
actor faces “a range of reasonable choices” in carrying it out; the distinction is
9 Appellee’s Answering Br. at 6; App. to Appellee’s Answering Br. at B29, B41–44. 10 10 Del. C. § 4001. 11 Handler Corp. v. Tlapechco, 901 A.2d 737, 743 (Del. 2006). 12 Sussex Cnty. v. Morris, 610 A.2d 1354, 1357–59 (Del. 1992).
4 “always one of degree,” turning on the presence of rules or regulations that minimize
opportunities for independent action.13 Delaware courts have consistently held that
the decision to hire a particular individual is discretionary.14 And although the
general duty to supervise students is ministerial, the manner and method by which
to provide adequate supervision is discretionary.15 What level of supervision is
adequate on the bus route, and which aide can best provide it, are matters of degree
and judgment, not the mechanical execution of a prescribed task.16
(7) The Superior Court also correctly held that no reasonable jury could
find gross or wanton negligence. Gross negligence, which we have equated with
criminal negligence, is “negligence representing an extreme departure from the
13 Greenfield ex rel. Ford v. Miles, 211 A.3d 1087, 1099 (Del. 2019) (quoting Morris, 610 A.2d at 1359); Simms v. Christiana Sch. Dist., 2004 WL 344015, at *8 (Del. Super. Jan. 30, 2004). 14 Gutierrez v. Advanced Student Transp., Inc., 2015 WL 4460342, at *4 (Del. Super. July 14, 2015) (“Delaware courts interpreting the DSTCA have held that the decision to hire is a discretionary decision.”); Simms, 2004 WL 344015, at *8 (concluding that a district’s decisions regarding the hiring, training, and supervision of its employees are discretionary and therefore immune absent gross or wanton negligence). 15 Tews v. Cape Henlopen Sch. Dist., 2013 WL 1087580, at *4 (Del. Super. Feb. 14, 2013); Jester v. Seaford Sch. Dist., 1991 WL 269899, at *4 (Del. Super. Nov. 4, 1991), aff’d, 610 A.2d 725, 1992 WL 151786 (Del. 1992) (TABLE). 16 Mondragon nevertheless argues that the heightened regulatory environment of a special-needs school makes the decision to provide adequate supervision ministerial. She relies on 14 Del. Admin. C. § 1150-8.3.10, which directs bus aides to “[a]ssist [p]upils with disabilities as prescribed in the [p]upil’s IEP,” and argues that, because Mr. Bogia could not read the IEPs on a bus where every student had one, the District necessarily breached a non-discretionary command. Appellant’s Opening Br. at 13. Section 1150-8.3.10, however, fixes what an aide must do once assigned to a bus—assist pupils as prescribed in their IEPs; it does not define whom the District must hire, what qualifications it must require, or the means by which IEP information must reach the aide. Those decisions are left to the District’s discretion.
5 ordinary standard of care.”17 Wanton negligence requires conduct “so unreasonable
and dangerous that a person knows or should know that an imminent likelihood of
harm can result,” reflecting “conscious indifference” and an “‘I don’t care’
attitude.”18
(8) Mondragon argues that, viewed collectively, Mr. Bogia’s inability to
read the students’ IEPs, his hiring through a personal connection, his asserted lack
of training to supervise special-needs children, and his criminal history would let a
reasonable juror find that the District acted with gross or wanton negligence when
Mr. Bogia was assigned. She further contends that the special-needs context
demanded greater care and that the Superior Court made an improper factual finding
that there was “no failure to act” when the assault continued over roughly twenty-
three minutes.19
(9) The record does not support a finding of gross or wanton negligence.
Many of the facts that Mondragon marshals are temporally or substantively
disconnected from Mr. Bogia’s competence as an aide or from the assault itself. The
DUI conviction predated his hiring by roughly a decade; the knife-related suspension
occurred when he was himself a high-school student more than twenty years earlier;
17 Hughes ex rel. Hughes v. Christiana Sch. Dist., 950 A.2d 659, 2008 WL 2083150, at *3 (Del. 2008) (TABLE); see also Jardel Co. v. Hughes, 523 A.2d 518, 530 (Del. 1987). 18 Gutierrez, 2015 WL 4460342, at *6; see also McHugh v. Brown, 125 A.2d 583, 586 (Del. 1956). 19 Appellant’s Opening Br. at 9–15.
6 and the offensive-touching charge arose from a separate adult matter that post-dated
the incident involving J.W., so the District could not have considered it when placing
Mr. Bogia on the bus.20 The two facts most directly tied to Mr. Bogia’s fitness—his
inability to read and the January 2023 suspension—are likewise insufficient, even
considered together. The suspension was a single disciplinary matter in roughly
seven years of otherwise satisfactory service; it involved a failure to report rather
than to act, caused no injury, and was investigated and addressed through
progressive discipline.21 And although Mr. Bogia could not read the IEPs himself,
the District presented evidence that he completed in-person training, instruction on
securing students, and a test route, and the IEP information could be conveyed to
him verbally.22
(10) Finally, that the attack may have unfolded over the course of the ride
does not convert the District’s conduct into gross negligence. Mr. Bogia was
actively supervising another student in distress when the assault occurred, and the
driver believed that Student 1 deliberately waited until Mr. Bogia’s attention was
diverted. A lapse in observation while attending to another child—however
regrettable its consequences—reflects, at most, the kind of supervisory imperfection
20 App. to Appellant’s Opening Br. at A29–31 (offensive touching); A77–80 (DUI conviction, knife-related suspension). 21 App. to Appellee’s Answering Br. at B22–23. 22 App. to Appellant’s Opening Br. at A79, A81, A92–93.
7 that sounds in ordinary negligence; it is not the conscious indifference that gross or
wanton negligence requires.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Abigail M. LeGrow Justice