DE Distinctions Flashcards
DE Firefighters Rule
First responders are not completely barred from recovery for injuries. DE Exceptions include:
1. Failure to warn of known hidden defects
2. Acts occurring after the safety officer’s arrival and are outside of their anticipated occupational hazards
3. Acts of arson or similar intentional misconduct
DE Duty to retreat
Unless you are the initial aggressor, no duty to retreat in home or workplace.
DE Independent Contractor Rule
General contractor has no duty to an independent contractor on the work site. GC will be liable only if
1. actively control the manner and method of performing work
2. voluntarily undertake responsibility for implementing safety measures, OR
3. retain possessory control over work premises during work
DE Age to be capable of negligence
Supreme Court has ruled 4.5 is too young to be capable of negligence. A violation of a statute by a child is not negligence or contributory negligence per se.
DE Dr. Standard
National standard of care for both GPs and Specialists.
DE Trespasser Liability
The limited duty owed by a landowner to adult trespassers—to refrain from wanton or willful
conduct—is applied as well to adult licensees (also called “guests without payment”).
- This duty is owed by residential and farm property owners under Delaware’s Guest Premises Statute and is
owed by commercial and industrial property owners under Delaware common law.
The Guest Premises Statute does not extend to public or business invitees.
DE Continuous Storm Rule
A landowner has no duty (even to an invitee) to clear away any ice or
snow until the storm that causes them has ended.
- Applies even when storm has lessened and when landowner has done some cleanup work – which in this
scenario is not an affirmative undertaking.
DE Landlord Liability to Guests of Tenants
Duty of Reasonable Care
Holdover Tenants are considered guests and cannot recover for a LLs negligence in maintaining a premises.
DE Good Samaritan Statute
Any person who gratuitously and in good faith renders emergency aid to someone (other than a hospital or clinic) is immune from liability for ordinary negligence and is liable only for willful, wanton, or reckless conduct.
DE NIED
– Allows recovery for seeing a tortfeasor negligently cause harm to another. P must show
1. The D negligently caused fright to the P
2. The P was in the zone of danger at the time of the negligent act
3. The negligently inflicted fright or shock caused a physical consequence.
- Additionally allows recovery for P outside the zone of danger who sees a close relative get injured.
- No physical impact rule.
DE Med Mal Affidavit Requirement
Health-care negligence cases require an affidavit of merit signed by a medical expert. The expert opinion must state that there are reasonable grounds to believe that the D committed negligence (aka proximate cause of the harm)
DE Med Mal Res Ipsa
P may use res ipsa to establish a rebuttable inference of health-care negligence when
- A foreign object is left in the P’s body
- An explosion or fire originating in a substance used in the treatment of the patient occurred in that
treatment OR - Surgery is done on the wrong patient or wrong body part.
DE Punitive Damages for Negligence
Punitive damages for negligence will be awarded when the D’s conduct exhibits a wanton or willful disregard for the rights of the plaintiff.
- In healthcare negligence cases, punitive damages may be awarded only for injuries caused by the defendant’s willful or wanton conduct or where the D acted with malicious intent.
DE Modified Collateral Source Rule
Modified collateral source rule permits juries to be made aware of collateral payments from public sources (such as Medicaid)
- Meaning no reduction for having insurance
DE Seatbelt Evidence Rule
Failure of a P to wear a seat belt in violation of the seat belt statute is inadmissible on the issues of comparative negligence, assumption of risk, and mitigation of damages.
- It is admissible for the limited purpose of defending against P’s allegation of negligent seat design and to show that the seat design did not proximately cause the P’s injuries.
DE Partial Comparative Negligence
A P is barred from recovery only if their fault is more than 50% of the total.
- Aka modified
- Not applied to strict liability actions
DE Implied Assumption of Risk
(1) defendant’s duty is limited by plaintiff’s knowing conduct (primary assumption of risk), or
- (2) plaintiff’s choice was unreasonable when encountering a known risk created by defendant’s breach of duty (secondary assumption of risk).
o Secondary assumption of risk is subsumed under the comparative negligence statute.
DE Dog Bite Statute
Strict liability is imposed on dog owners, regardless of the owner’s knowledge of
any dangerous propensities, unless the P was bitten while:
- (1) trespassing or committing or attempting to commit a crime on the owner’s property;
- (2) committing or attempting to commit a crime against any person; or
- (3) teasing, tormenting, or abusing the dog.
DE Strict Products Liability
None.
P suing suppliers of defective products must sue in either negligence or breach of implied warranty of merchantability or fitness for a particular purpose.
- A strict liability action for injuries caused by a defective product leased to the P would likely be permitted in an action based on UCC 2A.
DE Products Liability Privity Rule
Adopted intermediate version of the UCC rule on horizontal privity – protection is extended to any natural person who suffers personal injury
- a corporation could not recover.
DE minor drivers rule
The owner of a vehicle who permits a minor to drive is jointly and severally liable for injuries
caused by the minor’s negligent driving.
Parents who signed license applications for a minor are liable for the injuries caused by the minor’s negligent driving
DE Bartender Liability
Neither commercial or social servers of alcohol are liable for negligence when injury results to the person served or to third parties.
- However, liability has attached where the relationship between the plaintiff and the defendant (for example, a business invitee on the defendant’s premises) created a duty of care and the injury resulting from the
defendant’s service of alcohol was foreseeable.
DE Joint Tortfeasors
Comparative Contribution System:
The right of contribution doesn’t apply until
the joint tortfeasor has paid their share.
- If one joint tortfeasor and the plaintiff reach a settlement, the released tortfeasor may seek contribution only from other tortfeasors released by the settlement. There is no right to contribution from other joint tortfeasors that were not released by the same settlement, who are still liable.
- A release by the plaintiff of one tortfeasor, whether before or after judgment, does not discharge the others, but reduces the claim against the others in the amount of consideration paid for the release.
o The released tortfeasor is also not relieved from liability to make contribution unless the release is given before the right to contribution has accrued, and the release provides for a reduction of the
damages recoverable against the unreleased tortfeasors.
DE Who can recover in wrongful death actions?
Surviving spouse, parent, children, and siblings.
Recovery may be for pecuniary loss and for mental distress; however, as to mental distress, parents may recover only if there is no surviving spouse or children, and siblings may recover only if there is no surviving spouse, children, or parents.
DE Torts between family members
A spouse may sue the other spouse for a tort committed during marriage.
- Parent-child immunity applies to conduct inherent to the parent-child relationship, such as the exercise of parental authority and supervision or the exercise of discretion in providing care to the child.
- The negligent operation of an automobile is not conduct inherent to the parent-child relationship and therefore may be the basis of a suit by the child against the parent to the extent of the parent’s automobile insurance policy.
DE Government Immunity
Applies to state and municipal governments.
Legislative and judicial decision-making.
Immunity is waived for motor vehicle torts, maintenance of public buildings, and dumping of pollutants.
Damage award cannot exceed $300,000.
DE Tort SOL
2 yrs
DE Defamation
(1) the defamatory character of the communication,
- (2) publication,
- (3) that the communication refers to the plaintiff,
- (4) a third party’s understanding of the communication’s defamatory character; and
- (5) injury.
If brought by private person, DE requires the P prove negligence in an action against a media defendant but not against non-media.
DE Libel
Libel is actionable without proof of special damages. There is no distinction between libel per se and libel per quod.
DE Tortious Interference with Contract
(1) there was a contract,
(2) about which the particular defendant knew,
(3) an intentional act that was a significant factor in causing the breach of contract,
(4) the act was without justification, and
(5) it caused injury.
