Delaware Negligence Laws

Car accidents, slip-and-fall accidents, and other personal injuries can be caused by the negligence of multiple parties. When more than one party is partly responsible for what happened, Delaware’s comparative negligence rule determines how much each party is responsible to pay and whether the victim can recover anything.

In this article, we’ll explain how negligence works generally as well as Delaware’s approach to comparative negligence.

If you have been injured in the state of Delaware and believe someone else is at fault for the injury, contact a Delaware personal injury attorney. They can help evaluate the situation, assist with settlement negotiations, and determine how Delaware’s negligence laws apply.

How Negligence Works in Personal Injury Cases

Negligence is the legal theory behind most personal injury claims. For example, the following typically fall under negligence law:

• Motor vehicle accidents
• Slip-and-fall accidents
• Nursing home abuse
• Medical malpractice
• Wrongful death

Negligence law looks at whether someone owed a duty of care to another person and failed to meet that duty.

If a person breaches their duty and causes injury, they may be held “liable” in a civil case. This means they are found legally responsible for the harm and may have to compensate the injured party (the “plaintiff”). The funds a plaintiff recovers are called “damages.”

• Compensatory damages are meant to reimburse the injured person for their actual losses, such as medical bills, lost wages, pain and suffering, and any property damage to a vehicle or other belongings.
• If the at-fault party’s conduct is reckless or intentional, the court may also add punitive damages. Courts impose punitive damages to penalize the wrongdoer and discourage others from engaging in similar conduct.

If more than one party is at fault, the damages owed to the injured party can be divided between the defendants who are found liable.

However, in many states, a plaintiff’s damages are reduced if they’re found to be partially at fault for the accident. These rules typically fall into one of three categories:

• Contributory negligence: The most strict rule, where a plaintiff cannot recover damages if they are found at all at fault in the accident. Only a few states follow this rule.
• Pure comparative negligence: The plaintiff can recover damages regardless of their percentage of fault. The amount is simply reduced by their contribution to the accident. For example, someone could be found 80% responsible for the accident, but still recover 20% of their damages.
• Modified comparative negligence: The plaintiff’s damages amount is reduced by the amount they’re found at fault, unless they are found to be equally or more at fault (50% or 51%, depending on the state).

Delaware applies a modified comparative negligence rule, set out in 10 Del. C. § 8132. We’ll explain how this works below.

Modified Comparative Negligence in Delaware

If a jury finds that an injured person was partly responsible for an accident, the court reduces the damages awarded by that person’s percentage of fault. For example, if the total award is $100,000 and the court found the injured person 20 percent at fault. Then, their recovery would be $80,000.

Under Delaware’s modified comparative negligence rule, someone can recover damages only if their share of fault is not greater than the negligence of the defendant.

For example, imagine you are in a car accident and suffer injuries totaling $100,000 in damages. The court determines that the other driver was 70% at fault, but you were 30% at fault for speeding. Under Delaware’s rule, your recovery would be reduced by your percentage of fault. You could collect $70,000 ($100,000 minus your 30%).

However, if the court found you were 60% at fault, your fault would be greater than the other driver’s (40%). In this case, Delaware’s modified comparative negligence rule would bar you from recovering any damages at all.

Insurance companies and defense attorneys often focus on assigning blame to the injured party, since each percentage point of fault reduces the potential recovery.

Common Types of Negligence Claims in Delaware

Negligence shows up in a wide range of everyday situations. Two of the most common are car accidents and injuries that occur on another person’s property.

Car Accidents

Delaware follows a fault-based auto accident insurance system. The driver who causes a crash and their insurer are usually responsible for damages, often determined by the details found in the official police report. If you cannot resolve your claim with the insurance company, you can file a negligence lawsuit against the at-fault driver. The same modified comparative negligence rules apply.

Under 10 Del. C. § 8119, for most personal injury lawsuits, including car accident cases, you must file a claim within two years of the injury date. Missing this statute of limitations can mean losing your right to sue, no matter how strong your case.

Slip-and-Fall and Premises Liability Claims

Property owners in Delaware must keep their premises reasonably safe for visitors. The level of care owed depends on the reason for the visit.

• Customers, tenants, and other invited business visitors are owed the highest duty of care. Property owners must address known hazards, such as a spill on a store floor, and take reasonable steps to find hazards they do not yet know about.
• People who enter for their own reasons, such as door-to-door solicitors, are subject to a lower duty of care.
• Trespassers receive the least protection under Delaware law. Property owners are generally not held to have a duty of care towards a trespasser.

Other common negligence claims involve product liability for defective or dangerous products, nursing home neglect or abuse, and dog bites. Each of these types of claims may have additional rules beyond Delaware’s general negligence and comparative fault laws.

How Are Medical Malpractice Cases Different From Typical Negligence Cases?

Medical malpractice, also called medical negligence, is another type of negligence claim. These cases have unique legal requirements that make them more complex than typical slip-and-fall or motor vehicle accident claims.

1. You Must File an Affidavit of Merit

An Affidavit of Merit is a legal document an expert completes stating that they believe medical negligence occurred. As Delaware medical malpractice lawyer Michael C. Dalton explains:

“The Affidavit must be signed by an expert in the same or similar field of medicine as the defendant, and must state that the expert believes there are reasonable grounds to believe that medical negligence was committed and that the negligence caused the plaintiff’s injuries. The expert must be licensed to practice medicine and have been active in that field in the prior three years. There is no such requirement in common personal injury claims.”

2. You Need More Than One Medical Expert

It is rare for a common personal injury claim to have multiple experts. That’s not true with medical negligence cases.

“Frequently, in order to argue for various claims in a medical negligence lawsuit, the plaintiff must employ more than one expert in different fields of medicine, or in other, non-medical fields (e.g., economics),” Dalton notes. “Defendants frequently retain more than one expert, and courts rarely restrict them from presenting several experts at trial.”

3. Medical Malpractice Cases Are Harder To Win

“The overwhelming majority of medical negligence claims nationally return defense verdicts,” according to Dalton. “Juries tend to believe and trust physicians and providers. Plaintiffs bringing a medical negligence lawsuit confront both the need to meet their burden of proof and overcome the innate sympathy and trust a jury may have for a medical provider accused of negligence. Conversely, in most common personal injury claims, plaintiffs do not confront such bias in favor of the defendant.”

Because of these additional complexities, consulting an attorney is essential for a medical malpractice case.

Filing a Negligence Claim in Delaware? Talk to a Lawyer First

After an accident, pursuing a legal claim may be necessary to receive compensation for your injuries. The law allows injured people to seek recovery from those responsible, rather than bearing the costs of someone else’s negligence.

If you are considering a negligence claim, contact a Delaware personal injury lawyer. An attorney can explain your rights, help you understand your options, and guide you through the legal process.