Comparative Negligence in Delaware

Under Delaware state law, you can recover damages for a car accident unless you’re found to be more than 50% at fault.
Written by Samuel Todd
Reviewed by Kathleen Flear
Delaware is a modified comparative negligence state, which means that you can recover damages from a car accident as long as you weren’t more than 50% at fault.
Imagine that you’re heading down a busy highway, going 10 mph over the speed limit, and the car next to you suddenly swerves into you and scrapes your car. Once you’ve safely pulled to the side of the road, the process of assigning blame for the accident begins. The other driver might say that it was your fault for speeding, and you’ll counter by saying that they veered into your lane. So, who’s responsible?
The legal doctrine of comparative negligence can help to solve this problem. Comparative negligence allows both you and the other driver to take responsibility for your share of the blame and collect damages accordingly.
Comparative negligence laws are crucial to sorting out car accidents, and the laws vary depending on the state you’re in. That’s why
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has put together everything you need to know about comparative negligence law and finding
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What is comparative negligence?

Simply put, comparative negligence is a legal doctrine that allows blame to be shared. 
Revisiting our earlier example: let’s say that your negligence (that is, speeding) was found to be 20% of the cause of the accident and the other driver’s negligence (swerving into your lane) was found to be 80% of the cause. You would be allowed to recover 80% of the total damages to you and your car.
Comparative negligence applies to both personal injury lawsuits and insurance claims. If you chose to sue the driver that swerved into you, a judge or jury would decide your share of the blame and then allow you to recover damages from the other driver. 
On the other hand, when you file an insurance claim, the insurer will use comparative negligence to decide how much of the claim they’re responsible for.
MORE: How to file a car insurance claim

Types of comparative negligence:

Each state uses one of three kinds of comparative negligence: pure comparative negligence, modified comparative negligence, and contributory negligence.
  • Pure comparative negligence: Both injured parties can collect damages according to their share of the blame. Whether you’re 20% responsible or 80% responsible, you’ll be able to recover from the other driver.
  • Modified comparative negligence: Injured parties can collect damages as long as their fault is less than 50 % (or equal to 50%, in some states). So, if you’re found to be 80% responsible for a crash, you won’t be able to recover at all.
  • Contributory negligence: Injured parties can’t recover if they have any share of the blame for the accident. This doctrine is virtually extinct in the US because of its unjust outcomes—just imagine, if you were going five over, and someone ran into you at 100mph, you couldn’t collect damages because of your tiny speeding violation!
Key Takeaway: Comparative negligence is a doctrine that allows drivers to share blame for an accident and recover damages accordingly.

What is Delaware’s comparative negligence law? 

Under Delaware law, you can recover for damages in an accident unless you are more than 50% at fault. Delaware is one of 33 states that use modified comparative negligence.
  • If you’re 10% at fault for an accident, you can recover 90% of your total damages (100% minus your share of the blame).
  • If you’re 50% at fault for an accident, both you and the other driver will be able to recover 50% of your damages. This is called a split liability agreement.
  • If you’re more than 50% at fault for an accident, you will be responsible for a portion of the other driver’s damages and you won’t be able to recover for your own damages at all.

What happens if there are more than two responsible parties?

If there are more than two drivers at fault in an accident, the blame will be split between all of them. If you’re in a car crash with more than one other driver, each of you will be given a portion of the blame. As long as you’re not more than 50% responsible, you can recover from each of the other drivers.
If one of the other drivers can’t pay their share, the other at-fault parties will have to pay it instead—that way you can have the full recovery that you’re entitled to.

How is fault decided in a comparative negligence case?

Since car accidents can be complicated, insurance companies will try to assign blame accurately by examining evidence and reviewing police reports.
If you’re in an accident or see an accident happen, you can make sure that the right party is held responsible by gathering evidence. After making sure that everyone’s okay, make note of things like:
  • The types of vehicles in the accident
  • The weather conditions and time of day
  • Witness reports (or provide a witness report, if you saw the collision)
  • Photographs of the damage (be sure to photograph the vehicles in their entirety—it’s easy to miss damage at first sight!)
It’s also a good idea to call the police soon after the accident. A police report can be influential when insurance companies are trying to assign blame.

How does car insurance work with comparative negligence? 

Since Delaware is a modified comparative negligence state, you can file a claim with the other driver’s insurance company as long as you weren’t more than 50% responsible for the accident.
To illustrate how the rule works, let’s run through another example. You’re heading into an intersection with a green light, going ten over. Out of the corner of your eye, you notice another driver hurtling into the intersection (through a red light!). You slam the brakes, but because you were speeding, you aren’t able to stop before colliding with the other car.
An insurance company reviews the accident, finding you 20% at fault for speeding and the other driver 80% responsible for running the red light. Let’s say that the accident caused $4,000 of damage to your car. What can you recover?
Under Delaware law, you’ll be able to recover $3,200 from the other driver’s insurance company (80% of the total damage). Since they were more than 50% at fault, and Delaware is a modified comparative negligence state, they won’t be able to recover anything from you.
Key Takeaway: As long as you aren’t more than 50% responsible for an accident, you can recover a portion of your damages from the other driver’s insurance company.

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