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Delaware Personal Injury FAQ

Delaware isn’t just tax-friendly; it’s friendly-friendly. The First State routinely ranks among the happiest in the Union, and from the Riverfront in Wilmington to Rehoboth and Bethany Beaches, residents know we’re much more than a few expensive miles of I-95.

We try to take care of ourselves and our neighbors, but, like anywhere else, accidents happen. And whether you’ve called Georgetown your home for generations, just beginning your studies or government career in Dover, or just looking to kick back and relax on Fenwick Island, you may have suffered in an accident. If so, here is some background information on personal injury claims in Delaware.

How Will My Personal Injury Claim Be Processed in Delaware?

You may not know who to contact if you’re hurt in an accident. After making sure you and anyone else involved are okay and received any necessary medical attention, your next call will vary depending on how and where the accident happened.

You’re probably going to call your insurance company if you’ve been in a car accident. You’re going to tell your boss or manager about any workplace injuries. And you’re likely going to phone city hall if you sleep and fall on ice outside a municipal building.

Almost all personal injury claims reach some sort of resolution without the need for a lawsuit. Your insurance company (or the other driver’s) will cover your physical injuries and damage to the vehicle. Delaware’s statewide insurance program, funded by employers, pays workers’ compensation claims. And many stores will want to settle legitimate slip-and-fall cases before any bad publicity from a trial. The process for your particular injury claim will depend on the specifics of your case.

However you’re injured, it is important to document your medical bills, expenses, doctor appointments, property damage or repairs, and any lost wages due to your injuries. This is essential to your claim, especially if an early settlement offer doesn’t fully compensate you.

How Do I File a Personal Injury Lawsuit in Delaware?

If insurance or a settlement doesn’t cover the full cost of your injuries, you can file a personal injury lawsuit to recoup your losses. The lawsuit can also include claims for permanent damage to a person’s health, emotional well-being, and reputation. If a court find’s a defendant was reckless or negligent, and that recklessness or negligence was a cause of your injury, you’re entitled to compensation for your injuries.

The process by which you seek compensation will vary depending on how and where you were injured.

Delaware Worker’s Compensation

State worker’s compensation benefits cover both medical benefits beginning the day you’re injured and wage replacement after four days of missed work. Under Delaware law, your estimated wages are calculated depending on if you’ve worked for your employer for less than 13 weeks, 13 to 26 weeks, or more than 26 weeks. You can also file a claim if a third party caused the accident and it occurred during usual work duties or was work-related.

Delaware Product Liability Claims

Because Delaware is home to so many corporations, it can be home to many, many product liability lawsuits. Product liability refers to a manufacturer’s responsibility to ensure that their products don’t injure consumers.

Normally, you do not have to prove negligence in product liability claims under a theory known as strict liability. But Delaware does not apply strict liability to manufacturers, so you’ll need to prove negligence in the product’s design or manufacture, or that the manufacturer did not provide adequate instructions or enough warning of potential risks.

Finally, most states allow you to sue a retailer who sells a defective product. Not Delaware. Under the state’s “sealed container” defense, stores that receive and then sell a product in a sealed container, without knowledge of its defects, are legally immune if any injuries result.

Injuries on Delaware Private Premises or Public Property

Property owners, managers, and occupants have a responsibility to make their homes or commercial establishments safe for tenants, guests, and customers. The rules for trespassers vary depending on whether the trespasser was a child, and if so, why the child entered the property. And an unsafe condition on the premises, one that the owner should have known about and corrected, can lead to legal liability if it causes an injury.

If those accidents occur on public property, the person injured must follow a very specific process. There are statutes mandating that claimants must provide written notice of the injury with the government before they may file lawsuits against municipalities and public entities. Additionally, you only have one year after the date of injury to file a claim against a government agency.

Delaware Medical Malpractice Requirements

Many states have special rules for medical malpractice claims, and Delaware is no exception. The state requires potential plaintiffs to file an “affidavit of merit” along with their lawsuit. The affidavit must be signed by a medical professional who qualifies as an expert witness under Delaware law, include their qualifications, experience, and expertise, and state their reasonable belief that the defendant health care provider breached the applicable standard of care when treating the plaintiff.

How Is Negligence Proven in Delaware?

Negligence may seem like one of those confusing legal concepts, but it can be pretty straightforward. A negligence claim has four required elements each of you must prove to succeed:

  • The other party owed you a duty of care
  • The other party failed to meet that duty, through act or omission
  • But for that breach, you would not have been injured, and your injuries were from the breach and not some other source
  • That you have actually suffered some loss that can be compensated

But be careful, Delaware has strict “modified comparative negligence” laws. On the one hand, you may be able to sue multiple parties if each of their negligence contributed to your injuries, and you can recover according to a percentage of each party’s fault. But this applies to your own negligence as well. Any amount you’d be entitled to will be reduced by the percentage to which you were also at fault for the accident, you may not be able to sue at all if you’re found to have been more than 50 percent at fault.

What Damages Are Available in Delaware Personal Injury Cases?

Like many states, Delaware recognizes two main types of damages in personal injury cases: economic and non-economic damages.

Economic damages are compensation for monetary losses caused by the injury such as medical bills, property damage, or loss of work or wages. Non-economic damages cover intangible losses like pain and suffering, emotional distress, and loss of consortium.

Because pain and suffering damages can be difficult to measure, Delaware courts will attempt to consider a variety of factors in determining an appropriate amount, including the severity of the injury, the potential for ongoing physical and psychological consequences, the injured person’s age, and whether they had pre-existing conditions. Often, pain and suffering is calculated by multiplying economic damages by a number between one and five.

What Are Delaware’s Statutes of Limitations?

Every state has a statute of limitations that limits how long an injured party has to pursue legal action. Once that statutory time expires, courts will no longer accept an injury lawsuit. Delaware’s statute of limitations on almost all types of injury claims is two years. But for injuries that were either unknown or undiscovered by reasonable efforts, the time limit gets extended to three years.

Will I Need an Attorney to File a Personal Injury Lawsuit in Delaware?

Between civil statutes of limitation, the legal requirements for proving fault, and the special requirements for medical malpractice claims, it pays to have someone on your side. An experienced Delaware personal injury lawyer will be able to assess your injury claims and advise you on the best way to proceed. And legal counsel will be essential if someone else is claiming you caused their injuries.

But don’t worry, many good attorneys offer free initial consultations. Some may even take on your case for a contingency fee, meaning their fees will be paid from any settlement obtained or award won at trial.

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