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.
