Delaware Personal Injury Law

NewbornDelaware is the 2nd smallest state (only Rhode Island is smaller) in geographical size with the 6th smallest population. The state is divided into 3 comparatively large counties: Newcastle, Kent and Sussex. Sussex County covers the southern portion of the state and has a population of just under 200,000 people. Kent County occupies the central region of Delaware and home to 160,000 people.

Both Kent and Sussex counties are mostly rural and politically conservative. The bulk of Delaware's population is clustered into New Castle County in the northern part of the state. New Castle County is home to approximately 550,000 people. This makes up over 60% of the total population of Delaware. New Castle County is home to the 2 largest cities in Delaware: Wilmington & Newark, but it is part of the larger Philadelphia metropolitan region. Many resident of New Castle County commute to work in Philadelphia.

Not surprisingly, the social demographics of New Castle County are completely different compared to the rest of the state. New Castle is a very typical urban, liberal population center.

Delaware Court System

Almost all personal injury lawsuits in Delaware get filed and resolved in the Superior Court. Each County has its own Superior Court which is the court of general jurisdiction for civil and criminal matters.

The Delaware Court system is somewhat unique among states in that it has a Chancery with special subject matter jurisdiction over "equity" cases and cases involving corporate law issues. The workload and efficiency of the Superior Courts varies significantly depending on location. Not surprisingly, the vast majority of civil cases (and all other cases) end up in the Superior Court for New Castle County. This is because most of the people in Delaware live in New Castle County and also because it is the most favorable venue for plaintiffs.

Delaware's Statute of Limitations for Personal Injury Claims

Just like every other state, Delaware imposes a legal deadline on how long plaintiffs can wait before filing a personal injury lawsuit. These deadlines are commonly known as a statute of limitations. Although all states have a statute of limitations for personal injury and other claims, the length of time and rules for when the time begins to run are different in each state. In Delaware, normal personal injury claims are subject to a 3-year statute of limitations period. 10 Del. C. § 8119. Delaware's 3 year limitation period begins to run on discovery of the claim - which is usually the time of the accident in a personal injury case. See, e.g.  Strange v. Keiper Recaro Seating, Inc., 117 F.Supp.2d 408 (D. Del. 2000) (limitations period on bus driver's personal injury claims began to run from date of the accident when he was injured). For personal injury claims against the state, county, or local branch of government, Delaware imposes a 1 year statute of limitations period. 10 Del. C. § 8124.

Delaware's Comparative Fault Rule

In situations where a plaintiff is partly responsible for the accident that caused his injury, states follow different legal rules on how this affects their right to recover damages. Delaware has adopted what is referred to as a modified comparative fault rule. 10 Del. C. § 8132. Delaware's comparative fault rule holds that if you are found to be partly at fault for an accident, you can still sue the person who was primarily at fault but your damages will be reduced based on your percentage share of blame. For example, say you are involved in an accident and you suffer damages totaling $100,000. You go to trial and the jury awards you $100,000 but finds that you were 20% at fault for the accident, you will only $80,000 because your damages are automatically reduced by your 30% share of the fault.

There is a limit to this rule, however. If the plaintiff is 51% or more at fault for the accident they are completely barred from recovering any damages. So continuing with our example above, lets say you have $100,000 in damages but a jury finds that the defendant was 40% negligent and you were 60% negligent. In this scenario you won't get $40,000 in reduced damages. Under Delaware law, you will not be entitled to any damages at all because you were more than 51% at fault.

Delaware Automobile & Insurance Laws

Delaware is often described as a "no-fault" state with respect to auto insurance and claims. However, Delaware does not have a pure "no fault" system. Drivers in Delaware are required to carry "no-fault" auto insurance. This basically means that when you get in a car accident, you submit a claim under your own insurance policy even if the other driver was at fault. Unlike in pure no-fault states, however, Delaware does not impose any limits or restrictions on the right to sue the at-fault driver for additional damages.

  • Mobile Use Prohibited: Delaware law prohibits any use of a phone or handheld mobile device by drivers at any time while a vehicle is in motion. The use of hands-free features is permitted. 21 Del. C. § 4176C.
  • Duty of Drivers in Accident: in the event of a car accident, Delaware law requires all involved drivers to exchange information and report the accident to the police. The only exception is if the accident results in less than $500 in property damage.
  • Minimum Auto Insurance Requirements: Until recently, Delaware had very low mandatory minimums for car insurance coverage compared to other states. In 2017, however, the state raised the minimum coverage requirements:
    • BODILY INJURY: $25,000 per person & $50,000 per accident
    • PROPERTY DAMAGE: $10,000

In Delaware, personal injury protection (PIP) coverage is mandatory with minimums of $15,000 per person & $30,000 per accident. The same $15,000/$30,000 minimums apply for uninsured motorist coverage, however, UIM coverage can be declined in writing.

Strict Liability for Dog Bites

A number of states have adopted a so called "one bite" rule for dog bite liability cases. Under this rule the dog owner is not liable the very first time his dog bites someone (unless he had reason to know the dog was dangerous), but will be liable if the dog bites someone again. Delaware has rejected the one bite rule in favor of a strict liability approach to dog bite liability. Delaware dog owners are held strictly liable whenever their dog bites someone, regardless of whether the dog has done anything in the past. 9 Del. C. § 913.

No Caps on Personal Injury Damages

Under Delaware law, personal injury claimants are entitled to recover the normal types of compensatory damages: lost wages/income, medical expenses, pain & suffering. Delaware also allows punitive damages to be award in certain circumstances. Delaware law does not impose any caps or maximum limits on the amount of damages plaintiffs can receive in a personal injury case.

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