Individual States 

DELAWARE

ASSUMPTION OF RISK

Assumption of risk is a defense in a product liability and negligence action that will bar recovery. Massey-Ferguson, Inc. v. Wells, 383 A.2d 640 (1978) .

CAPS ON NONECONOMIC DAMAGES

There are no exclusive Products Liability statutes under this category.

COLLATERAL SOURCE RULE

There are no exclusive Products Liability statutes under this category.

COMPARATIVE FAULT

In actions for negligence resulting in death or injury to person or property, plaintiff's negligence does not bar recovery unless it is greater than the combined negligence of all defendants. Where recovery is not barred, damages are diminished in proportion to the amount of negligence attributed to the plaintiff. Del. Code Ann. tit. 10, §8132 .

Note: Strict liability is not a recognized cause of action in Delaware for product liability claims, thus comparative fault only apples in negligence. Cline v. Prowler Indus. of Md., Inc., 418 A.2d 968 (Del. 1980) .

ECONOMIC LOSS

The economic loss doctrine prohibits recovery in tort for economic losses caused by a qualitatively defective product that has damaged only itself. "Other property" exception is recognized. Danforth v. Acorn Structures, Inc., 608 A.2d 1194 (Del.1992) .

However, de minimis damages to "other property" will not take the case outside the economic loss doctrine. Delmarva Power & Light v. Meter-Treater Inc., 218 F.Supp.2d 564 (D. Del. 2002) .

JOINT & SEVERAL LIABILITY

Joint and several liability applies to all tortfeasors regardless of comparative fault and whether or not judgment has been recovered against all or some of them. Del. Code Ann. tit. 10, §6301 ; Clark v. Brooks, 377 A.2d 365 (1977) .

PUNITIVE DAMAGES

In product liability actions, punitive damages may only be awarded for outrageous conduct after a strong factual predicate for compensatory damages has been established. Defendant's conduct must be reprehensible, i.e. reckless, or motivated by malice or fraud. Punitive damages are sustainable for persistent distribution of an inherently dangerous product with knowledge of its injury-causing effect among the consuming public. Additionally, an additional showing of aggravated conduct is required. Sheppard v. A.C. & Co., Inc., 484 A.2d 521 (Del. 1984) .

Punitive damages are not available under Delaware's wrongful death statute: 10 Del. Code §3724. Sterner v. Wesley College, Inc., 747 F. Supp. 263 (D. Del. 1990).

Punitive damages are only deemed disproportionate if they are so grossly excessive, compared to compensatory damages, that it shocks the conscience. Sheats v. Bowen, 318 F. Supp. 640 (D. Del. 1970) .

RIGHT TO CONTRIBUTION

Joint tortfeasors who pay all or more than proportionate share of a judgment may seek contribution from other joint tortfeasors. Del. Code Ann. tit. 10, §6302.

Recovery of judgment against one joint tortfeasor does not discharge the others, and that nothing here impairs any right to indemnity under existing law. Del. Code Ann. tit. 10, §§6302, 6303, 6305 .

A joint tortfeasor who settles cannot recover contributions from another whose liability was not extinguished in the settlement. Del. Code Ann. tit. 10, §6302 (c) .

A release of one joint tortfeasor does not release the others unless it so provides, but reduces the claim by the greater of the amount stipulated or the consideration paid. Note however, that release does not relieve the tortfeasor of liability to make contribution unless (1) it is given before the other tortfeasor's right to receive contribution has accrued, and (2) it provides for a reduction to the extent of the released tortfeasors pro rata share of the damages. Del. Code Ann. tit. 10, §6304 .

SPECIAL DEFENSES

Sealed container is a defense to action against a product seller except where: (1) the claimant is unable to identify the manufacturer through reasonable effort; (2) the manufacturer is insolvent, immune from suit or not subject to suit in Delaware; or (3) the seller made any express warranties, the breach of which were the proximate and substantial cause of the claimant's injury. Del. Code Ann. tit. 18, §7001(b)(1) .

Military equipment suppliers for the United States government may not be held liable for design defects pursuant to state law, when the United States approved reasonably precise specifications, the equipment conforms to those specifications, and the supplier warned the United States about the potential danger(s). Miller v. United Techs. Corp., 233 Conn. 732 A.2d 810 (1995) .

STATUTES OF LIMITATION

Actions for wrongful death or injury to personal property must be brought within two years. Del. Code Ann. tit. 10, §8107 .

Actions for personal injuries must be brought within two years. Del. Code Ann. tit. 10, §8119 .

Breach of warranty actions must be brought within four years. Del. Code Ann. tit. 10, §2-725 .

The U.C.C. preempts the doctrine of strict tort liability for sale of goods. Thus, once the four year statute of limitation of §2-725 expires in such a case, a plaintiff can proceed only on a theory of negligence. Cline v. Prowler Indus. of Md., Inc., 418 A.2d 968 (Del. 1980) .

STATUTES OF REPOSE

There is no statute of repose for product liability actions in Delaware.

STRUCTURED SETTLEMENT

There are no exclusive Products Liability statutes under this category.