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Last Reviewed / Modified On 29 Oct 2018.

DELAWARE TRANSPORTATION RESOURCES

Liability

Statutes of Limitation

  1. Bodily Injury / Property Damage. All bodily injury and property damage claims are subject to a two (2) year statute of limitations. 10 Del. C. § 8119, 8107.
  2. Contract Claims. Causes of action sounding in contract are subject to a three (3) year statute of limitations. 10 Del. C. § 8106.

Negligent Entrustment, Hiring, Retention, Supervision

  1. What if Course and Scope is Admitted? Delaware follows the minority rule in permitting direct causes of action for negligent hiring, retention and supervision in addition to respondeat superior claims, even when course and scope of employment is admitted. Under a respondeat superior theory, an employer would be liable for any negligence related to its agent’s actions. Under a direct negligence theory, however, an employer would be liable for any negligence of its employees in monitoring its agent, which is wholly unrelated to an underlying accident. See Smith v. Williams, 2007 Del. Super. WL 2677131.
  2. Negligent Entrustment. A vehicle owner or employer is subject to liability when he or she provides a vehicle (or other dangerous instrument) to someone he or she knows or should have known that doing so would constitute an unreasonable risk of harm to others. Delaware courts have held that the standard to prove negligent entrustment includes: one (1) entrustment of the vehicle; two (2) to a reckless or incompetent driver whom; three (3) the entrustor had reason to know is reckless or incompetent; and four (4) this results in damages. Fisher v. Novak, 1990 Del. Super. WL 82153.
  3. Negligent Hiring, Supervision and Retention. An employer is liable for negligent hiring or supervision where the employer is negligent in giving improper or ambiguous orders or in failing to make proper regulations, or in the employment of improper persons, thus creating an unreasonable risk of harm to others. See Matthews v. Booth, 2008 Del. Super. WL 2154391, at *3, citing Simms v. Christina School District, 20014 Del. Super. WL 344015. The existence of duty under a negligent supervision theory depends upon whether the risk of harm from the dangerous employee was reasonably foreseeable as a result of the employment. Id.

Course and Scope of Employment

  1. Respondeat Superior. This doctrine allows for an employer to be held liable for the actions of their employees. The employee must be acting within the scope of their employment when the tortious conduct takes place. Fisher v. Townsend’s, Inc., 695 A.2d. 53, 58 (Del. Super. 1997). Essentially, the employer is vicariously liable for the actions of their employee or agent. Id at 58-59.

Comparative or Contributory Negligence

  1. Comparative Negligence. Delaware is a modified comparative negligence state. 10 Del. C. § 8132. The plaintiff’s negligence will not bar recovery if their negligence is not greater than the negligence of the defendant. However, damages shall be diminished in proportion to the amount of negligence attributed to the plaintiff. Essentially, if the plaintiff is greater than 50% at fault there is no recovery. If the plaintiff is 50% at fault or less, the plaintiff can recover, but damages will be reduced by plaintiff’s percentage of negligence.
  2. Sudden Emergency Defense. When suddenly confronted with an emergency, a driver is not liable for negligence if he or she makes “such choice as a person of ordinary prudence placed in such a position might make.” Dadds v. Pennsylvania R. Co., 251 A.2d 559, 561 (Del. 1969). Although Delaware does recognize the sudden emergency doctrine, it is “not an exception to the general rule that one must act as a reasonably prudent person would act under the same circumstances.” Id. Rather, a “sudden emergency” is one of the circumstances to be considered by the fact finder in determining whether the alleged tortfeasor acted as a reasonably prudent person in the situation at issue. Id.

Contribution or Implied Indemnity from Third-Parties

Delaware law provides statutory contribution for defendants with a common liability to the plaintiff. 10 Del. C. § 6301. The statute provides for apportionment among joint tortfeasors in accordance with their relative percentages of fault.

Exclusivity of Workers Compensation

Although Delaware recognizes the exclusivity of workers compensation, exceptions remain for uninsured and underinsured motorist benefits and personal injury protection benefits. 19 Del. C. § 2304. A plaintiff can collect the difference between workers compensation benefits, paid at 66 2/3% and 80% paid by PIP.

Seat Belt and Helmet Use

Failure to wear or use a seatbelt shall not be considered as evidence of comparative or contributory negligence in any civil suit, nor shall failure to wear a seatbelt be admissible as evidence at trial. 21 Del. C. § 4802(i). Similarly, an adult’s failure to wear a helmet is irrelevant for purposes of comparative negligence and cannot be used to argue failure to mitigate damages. See McKinley v. Casson, 80 A.3d 618 (Del. 2013). This case does not address the requirement of individuals under the age of 19 to wear a helmet, leaving open the possibility of a minor’s failure to wear a helmet to be used in an argument for comparative negligence. See 21 Del. C. § 4185(b).

Spoliation

Delaware courts permit an adverse inference instruction based on spoliation when a party “intentionally or recklessly destroys evidence when it knows the item in question is relevant to a legal dispute or it was otherwise under a legal duty to preserve the item.” See Nationwide Mut. Fire. Ins. Co. v. Delmarva Power & Light Co., 2009 Del. Super. WL 684565, citing Sears, Roebuck & Co. v. Midcap, 893 A.2d 542, 552 (Del. 2006).

Damages

Caps

There are no caps under Delaware law for non-economic damages. Delaware courts have emphasized its “strong public policy against imposing any limitation on damages in order to ensure that its citizens receive the full recovery that the jury awards them.” Judge Trucking Co. v. Cooper, 1994 Del. Super. WL 680029, at*5.

Joint & Several Liability

Defendants may be jointly or severally liable to the plaintiff. When it is determined that one defendant is the sole proximate cause of the injury, this acts as a supervening cause, shielding other defendants from liability. Sears Roebuck & Co. v. Huang, 652 A.2d 568 (Del. 1995).

Standard of Proof Required for Compensatory Damages

The traditional measure of compensatory damages, which a plaintiff must prove by a preponderance of the evidence, is the actual or “out-of-pocket” loss caused by a defendant’s wrongful conduct. See Jardel Co. v. Hughes, 523 A.2d 518, 528 (Del. 1987); Strassburger v. Earley, 752 A.2d 557, 559 (Del.Ch. 2000). Compensatory damages must be “logically and reasonably related to the harm or injury for which compensation is being awarded.” In re J.P. Morgan Chase & Co. Shareholder Litigation, 906 A.2d 766, 773 (Del. 2006).

  1. Collateral Source Rule. Delaware recognizes the collateral source rule, which states that a tortfeasor cannot benefit by payment from a third party for injuries or medical expenses sustained by a plaintiff. Evidence of damages can still be presented to the jury. There is an exception to this regarding PIP benefits. Medical expenses and lost wages paid pursuant to 21 Del. C. § 2118 cannot be introduced as evidence in the liability case.
    1. The insured can collect both disability pay and PIP benefits as long as he or she paid consideration for those benefits. The courts treat this as the ability to contract for a double recovery. If the employer paid 100% of the premiums, it can offset for any benefits received. State Farm Mut. Ins. Co. v. Nalbone, 569 A.2d 71 (Del. 1989).

  2. Health insurance. A PIP carrier would owe any lien and any balance billed by the provider to the insured.
  3. Medicare/Medicaid. Although the collateral source rule is recognized for private health insurers, Delaware courts have held it does not apply to amounts written off under Medicare/Medicaid insurance plans. See Stayton v. Delaware Health Corporation, 117 A.3d 521, 531 (Del. 2015); Smith v. Mahoney, 150 A.3d 1200, 1208 (Del. 2016). Therefore, only amounts actually paid by Medicare/Medicaid are considered to be boardable expenses at trial.

Hedonic Damages

Hedonic damages are not permitted as a distinct basis for recovery under Delaware’s survival action statute. Rather, a plaintiff “may offer evidence of the hedonic value of [a] decedent’s life only to the extent that it is relevant as a measure of the decedent’s pain and suffering.” See Sterner v. Wesley College, Inc., 747 F.Supp. 263, 272 (D.Del. 1990).

Life Care Plans

Expert opinion regarding life care plans and related cost are admissible pursuant to D.R.E. 702, 703, so long as the proffered life care planner and testimony meets the five-part test adopted by the Delaware Supreme Court and as articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). See Spicer v. Osunkoya, 2011 Del. Supre. WL 809597.

Wrongful Death Standing and Damages

The Delaware wrongful death statute provides a recovery for mental anguish suffered by survivors of a decedent, which includes the surviving spouse, children, father, and mother or persons in standing in loco parentis at the time of the death. 10 Del. C. § 3724. In determining damages, a jury may consider: (1) depravation of the expected pecuniary benefits to the beneficiaries that would have resulted from the continued life of the decedent; (2) loss of contributions for support; (3) loss of parental, marital and household services, including the reasonable cost of providing for the care of minor children; (4) reasonable funeral expenses not to exceed $7,000, or the amount designated in 29 Del. C. § 5546(a), whichever is greater; (5) mental anguish to the surviving spouse and next of kin. Additions to (5) include the following: “[W]hen mental anguish is claimed as a measure of damages under this subchapter, such claim for mental anguish will be applicable only to the surviving spouse, children and persons to whom the deceased stood in loco parentis at the time of the injury which caused the death of the deceased, parents and persons standing in loco parentis to the deceased at the time of the injury which caused the death of the deceased (if there is no surviving spouse, children or persons to whom the deceased stood in loco parentis), and siblings (if there is no surviving spouse, children, persons to whom the deceased stood in loco parentis at the time of the injury, parents or persons standing in loco parentis to the deceased at the time of the injury which caused the death of the deceased). Punitive damages are not available in a wrongful death claim. See Sterner v. Wesley College, Inc., 747 F.Supp. 263 (D.Del. 1990).

Punitive Damages

  1. Generally. Punitive damages serve three purposes: one (1) to punish the wrongdoer; two (2) to deter the wrongdoer from engaging in similar conduct in the future; and three (3) to deter others from similar conduct. The plaintiff must show behavior that rises to the level of willful, wanton, and malicious conduct in order to recover punitive damages. A plaintiff may prove this conduct by showing a pattern of behavior in addition to a single act. Jardel Co. v. Hughes, 523 A.2d 518, 529 (Del. 1987); see also Crowhorn v. Nationwide, 836 A.2d 558 (Del. Super. 2003).
  2. Caps. There are no caps on non-economic damages under Delaware law.
  3. Insurable. Delaware law does not require insurers to provide coverage for punitive damages. Price v. Continental Ins. Co., 768 A.2d 975, 977 (Del. Ch. 2000). There is also no public policy, however, that prevents a carrier from being obligated by contract to pay punitive damages assessed against the insured. Whalen v. On-Deck, Inc., 514 A.2d 1072, 1074 (Del. 1986).

Offers of Judgment

If a defendant makes a settlement offer more than ten days from the date of trial, the offer is refused by the plaintiff, and the subsequent judgment is less than or equal to the offer, the plaintiff must pay the defendant’s costs incurred subsequent to the offer. Additionally, the plaintiff is precluded from filing for his or her costs. Super. Ct. Civ. R. 68.

Biomechanics

Biomechanical expert opinion may be admissible without being related to expert medical opinion. Smith v. Grief, 106 A.3d 1050, *2 (Del. 2015). The inquiry as to admissibility of biomechanical expert testimony, which is dependent on the particular facts of each case, is “whether the expert opinion is sufficiently reliable, as well as relevant, so that the trial judge can fairly conclude that it is trustworthy.” Id., quoting Mason v. Rizzi, 89 A.3d 32, 36 (Del. 2004).

No Requirement for Disclosure of Policy Limits Pre-Suit

There is no requirement in Delaware that policy limits be disclosed to a claimant before the filing of a lawsuit. Pursuant to Delaware Rules governing Form 30 interrogatories, policy limits must be disclosed when answering Form 30 Interrogatories after the inception of litigation. See Form 30 of Super. Ct. Civ. Rules.

Uninsured Claimant May Recover Despite Lack of Insurance

At least in the PIP context, an uninsured plaintiff may still plead and recover special damages; the fact of lack of insurance is irrelevant. Phillips v. Ocasio, 2014 Del. Super 1390454. Delaware courts have held that evidence of failure to insure would be outweighed by a danger of unfair prejudice to the plaintiff. Id. Furthermore, the “penalties for not having statutorily-mandated insurance are specific and do not include forfeiting the right to recover monetary damages from a tortfeasor.” Redding v. Ortega, 840 A.2d 1224, 1228 (Del. 2003).

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