Negligence

In order to bring a claim for negligence, the plaintiff must prove that the defendant had a duty of care to the plaintiff, they breached that duty of care, which was a proximate cause of an injury to the plaintiff.

Modified Comparative Negligence

Delaware is considered to be a comparative negligence state. (10 Del. Code §8132) This means that a plaintiff may recover damages if their percentage of fault, determined by a court, does not exceed 50%. Further, if a plaintiff’s percentage of fault is less than 50%, and is therefore eligible for a monetary recovery, their damages will be reduced according to their percentage of fault. Therefore, if the court assigns 51% or greater fault to the plaintiff, the plaintiff is barred from monetary recovery. However, if the percentage of fault attributed to the plaintiff is 50% or lower, recovery is available to the plaintiff.

Joint and Several Liability

Delaware is a joint and several liability state as provided in 10 Del. Code Sec. 6301. This means that in an action where multiple defendants are found to have been liable for a plaintiff’s injury, all parties are potentially fully responsible for paying the damages awarded by the court. For example, if a court found that Defendant A was 1% responsible for the plaintiff’s injury and Defendant B was 99% responsible, the plaintiff has the right to collect the full amount of damages from Defendant A, despite the fact that they were found to have only been 1% responsible. This method of recovery protects the plaintiff in the event that one or more parties to the lawsuit are found to be insolvent.

Delaware affords joint tortfeasors a right to contribution; if a defendant pays more than his share of the total liability, he is eligible for contribution from defendants who have paid less than their proportionate shares.

Damages

Compensatory Damages

Compensatory damages are awarded by a Court to compensate the plaintiff for injuries suffered as a result of the negligence of the defendant(s). The award is meant to restore the plaintiff – as much as possible – to the condition they were in prior to the injury occurring.

Damages will be awarded for pain and suffering; loss of past and future earnings; medical expenses; loss of enjoyment of life, etc.

Delaware does not place cap limits on the amount of damages that may be awarded in a personal injury case.

Punitive Damages

Punitive damages are meant to punish a defendant rather than to compensate the plaintiff.

In Delaware, the basis of an award of punitive damages are acts of malice; hate; sprite; a conscious desire to cause injury; intentional, willful, or outrageous conduct; evil motive; and conscious or reckless indifference to the rights of others.

DISCLAIMER:

The law firm of Walker Morgan is located at 135 E Main St., Lexington, SC 29072. All lawyers at Walker Morgan are licensed to practice law in the State of South Carolina. Should you wish to retain our firm for legal representation regarding a potential case in any other jurisdiction we are required to associate local counsel in that foreign jurisdiction and seek permission from a court of the foreign jurisdiction to temporarily engage in the practice of law therein for purposes of pursuing your potential claim only.

By offering the following information the lawyers at Walker Morgan are not offering legal advice or legal guidance. The lawyers at Walker Morgan are not licensed to practice law in Delaware. Should you have a question/concern specific to Delaware law, please contact an attorney licensed to practice law in the State of Delaware.