Those who have been injured in Delaware due to the negligence or maliciousness of another have a right to financial compensation. Filing a claim for injuries is known as a Delaware personal injury claim and must be taken care of in the proper way to result in a justified amount of compensation or any compensation at all. Because of the great complexity of these matters, we have simplified them for you. In this article you will learn what you must prove to win a negligence settlement in Delaware, what y ou must prove to win a defective product case in Delaware, harm caused other than physical injury that can factor into the amount of a settlement, how long you have to file a claim in Delaware, the most common causes of personal injury claims, some things you can do to preserve your potential claim and more.
Proving Delaware Negligence
To prove and ultimately win a negligence claim in Delaware you must show all of the following 4 things:
- The at fault party who caused your injury owed you a responsibility, otherwise known as a ‘duty’. We all owe a duty to the people around us to abide by a code of conduct that will prevent harm to them. A common example of a duty would be simply driving the speed limit. When we drive a car we all owe the duty to other drivers and pedestrians to do the speed limit and drive safely.
- The person failed to carry out that responsibility or duty. You must prove that what the person did to cause your injury was reckless or negligent.
- You must prove you were harmed or in other words suffered ‘damages’. Damages are not limited to physical injuries (see below.) Rather, they can include mental or emotional injury, lost wages, pain and suffering, current and future medical bills and more.
- The other person’s failure to carry out the duty they owed caused your injury. Using the driving example again, you must show that the reckless driver not only was driving reckless, but that the reckless driving directly resulted in your injuries.
If you contributed to the cause of your injury, you may be able to recover a settlement under Delaware strict liability law. Comparative negligence assigns a degree of fault after a personal injury settlement is reached and works on percentage basis (if you are assigned 15% fault you will receive 85% of the settlement.)You may not recover if you were 50% or more at fault.
To prove you were injured by a defective product you must prove strict liability or product liability. These types of lawsuits are much different than negligence claims. To prove strict liability in you must show:
- The product was defective.
- You used the product properly.
- The defecting product caused your injury.
- You suffered damages.
If you can prove the above you might be wondering what a settlement would be worth. This all depends on the amount of damages you have sustained.
Damages in Delaware
As stated above it is not only physical injury that will play a role in your settlement. Common damages that will play a factor into a settlement include:
- Current and future medical bills
- Lost wages
- Pain and suffering
- Permanent scars
- Emotional trauma
- Mental anguish
- Loss of employment
- Loss of love
- Metal Disability
- Property Damage
- Any out of pocket expenses caused by your injury
Or, in other words, ANY harm caused to you by the at fault party will play a role in the settlement. However, regardless of the harm you have suffered time restraints in Delaware personal injury laws may prevent you from ever being able to file a lawsuit. These time restraints are known as the statutes of limitations.
Statutes of Limitations (SOL)
Generally speaking, you have 2 years to file a personal injury lawsuit in Delaware under the SOL. However, the SOL have technicalities in them that can give you more or less time to file a claim. These technicalities include:
- Wrongful Death – 2 years from accrual with Discovery Rule
- Medical Malpractice – 2 years from date of injury, with Discovery Rule. SOR: 3 years from malpractice. Tolls: Children under age 6 have 2 years, or until their 6th birthday, to bring claim. Damages: Several special rules apply to compensatory and punitive damage awards in medical malpractice.
- Products Liability – 2 years from date injury sustained. Discovery Rule applies.
- Intentional Torts – 2 years
- Municipal Liability/Sovereign Immunity – Waived but only for actions in state court and only when claim is covered by state insurance program.
- Disabilities – Infants (18 th birthday), incompetents, or insane persons allowed 3 years after disability ceases to commence action.
As you can see the statutes of limitations can get very complex. And on top of that, they are frequently changing. It is because of this, that any potential personal injury claim should be brought before a qualified attorney quickly. Now lets have a look at the most common causes of personal injuries.
Common Causes
Keep in mind injuries can be sustained in many different ways and from a legal standpoint trigger different areas of law. In many cases it is in your best interest to hire a lawyer to represent you who specializes in your type of case. The most common causes of Delaware personal injuries are:
- Slip and fall injuries – These types of injuries fall under premises liability law. Visit our premises liability section for more information.
- Auto accidents – Obviously, this includes injuries sustained in car, bus, truck and motorcycle accidents. However, there can be a big difference between them. If you have been injured, for example, in a motorcycle accident, you may want to consider hiring a lawyer who specializes and has great knowledge of motorcycle accidents.
- Defective products – This can be a very complex area of law regarding personal injury lawsuits, technically referred to as product liability law. Learn more at our product liability section.
- Dog bites/attacks – When Injured by a dog bite you may be able to sue the dog’s owner for financial compensation, but should waste no time filing a potential lawsuit. Visit our dog bite injury section for more information.
- Elder and nursing home abuse – In spite of the law, nursing home abuse continues to be a serious problem. The National Center on Elder Abuse estimates at least one in 20 nursing home patients has been the victim of nursing home abuse. Visit our nursing home abuse section to learn more.
- Maritime accidents – Maritime or boat accidents should be refereed to a lawyer specializing in these types of cases. If you have been injured in a Delaware boat accident waste no time contacting a Maritime lawyer to begin the claim process.
- Medical Malpractice – These can be some of the toughest type of claims to win due to special laws or statutes for medical malpractice lawsuits, seemingly designed to protect the health care industry and insurance companies. More information at our medical malpractice section.
- Wrongful Deaths – When someone dies due to the recklessness or negligence of another this is called a wrongful death, which can trigger a wrongful death lawsuit. A wrongful death lawsuits seeks financial compensation (damages) for the family of the victim. Read more at our wrongful death section.
The above are the most common causes of personal injuries and personal injury lawsuits in Delaware. You should waste no time contacting a lawyer specializing in the types of injuries and damages you have sustained. As you can see every case is very unique, but lets look at some general things you can do to preserve a personal injury claim.
Preserving a Personal Injury Claim
If you are thinking of filing a personal injury claim there are some general guidelines you should consider following to preserve your chances of being financially compensated. While we understand in cases of serious injury your actions can be limited they include:
- Preserving any evidence. This can be a vital in many different types of claims. For example, if your injury was the result of a slip and fall a photograph of what caused your fall can be vital. Many times in slip and fall cases (premises liability law) the owner of the property you injured yourself on will repair whatever it is that caused your fall in fear of being sued.
- Get any witnesses information. If anyone witnessed your accident they may be able to help your case by either talking to an insurance company or testifying in court. Commonly witnesses come into play in car accident lawsuits. If possible, get the names, addresses and phone numbers of any witnesses to your accident.
- Document ALL of your injuries. The best way to this is would be taking pictures of any visible injuries and/or promptly seeking medical attention. Without documentation of your injuries, there is probably not going to be a personal injury claim to pursue.
- Don’t talk to any insurance companies. Insurance companies have a way of manipulating what you say in order to pay out the least money possible or avoid paying you any money at all.
- Contact a personal injury attorney to get the claim process started.
As stated above this should not be taken as legal advice. Because of the uniqueness of every case and the constant changes in Delaware law, any potential personal injury claim should be gone over with a qualified Delaware personal injury attorney as soon as possible.
