Statutes of Limitations (DELAWARE)


Personal Injury - 2 yrs. [10 Del.C. § 8119]

Wrongful Death - 2 yrs. [10 Del.C. § 8107]

Personal Property - 2 yrs. [10 Del.C. § 8107]

Real Property - 3 yrs. [10 Del.C. § 8106]

Contracts (Written and Oral) - 3 yrs. [10 Del.C. § 8106]

Contracts for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [6 Del.C. § 2-725]


Usually no “discovery rule.”  A cause of action in tort accrues at the time the tort is committed [Boerger v. Heiman, 965 A.2d 671 (Del. 2009)].






Statute of Repose (Products) (DELAWARE)




Admissibility of Expert Testimony (DELAWARE)


Daubert test is instructive.  There are factors for a trial judge to consider in discharging his “gatekeeping” obligation in accepting expert testimony, e.g., testing, peer review, error rates, and acceptability in the relevant scientific community, some or all of which might prove helpful in determining the reliability of a particular scientific theory or technique. The trial judge's inquiry is a flexible one. These factors do not constitute a definitive checklist or test but must be tied to the facts of a particular case [M.G. Bancorporation v. Le Beau, 737 A.2d 513 (Del.  1999)].


Causes of Action (DELAWARE)


Strict Liability – Has not been adopted. [Cline v. Prowler Industries of Maryland, Inc., 418 A.2d 968 (Del. 1980]. Delaware Supreme Court stated that it is not within its power to adopt strict tort liability in sales cases because of the preeminence of UCC in that field of the law; if more fair and complete protective relief is to be forthcoming for consumers injured by defective products, it must come from the General Assembly. [Id.].  NOTE: strict liability may apply in a bailment-lease case, because such transactions are not covered by UCC [Id.].


Negligence – A plaintiff’s burden in a negligence case is to establish that the defendant failed to exercise the care of a reasonably prudent manufacturer under all the circumstances [Franchetti v. Intercole Automation, Inc., 529 F. Supp. 533 (D. Del. 1982)].  A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing physical harm to those who use it for a purpose for which the manufacturer should expect it to be used and to those whom he should expect to be endangered by its probable use, is subject to liability for physical harm caused to them by its lawful use in a manner and for a purpose for which it is supplied [Brower v. Metal Indus., 719 A.2d 941 (Del. 1998)].


Breach of Warranty –  Delaware has adopted the standard UCC express warranty [6 Del.C. § 2-313]; implied warranty or merchantability [6 Del.C. § 2-314]; implied warranty of fitness for particular purpose [6 Del.C. § 2-315].  A seller’s warranty (express or implied) extends to any natural person who may reasonably be expected to use, consume or be affected by the goods and who is injured by breach of the warranty [6 Del.C. § 2-318].   The elements of a breach of warranty of merchantability claim are that: (1) a merchant sold the goods; (2) such goods were not “merchantable” at the time of sale; (3) plaintiff was damaged; (4) the damage was caused by the breach of the warranty of merchantability; and (5) the seller had notice of the damage.  To be “merchantable,” the goods must be fit for the ordinary purposes for which such goods are used.  A claim for breach of warranty (express or implied) is conceptually distinct from a negligence claim because the latter focuses on the manufacturer’s conduct, whereas a breach of warranty claim evaluates the product itself [Hyatt v. Toys "R" Us, 930 A.2d 928 (Del. 2007)].  A cause of action based on the the theory of implied warranty of merchantability shares some similarities with strict liability (1) a breach of warranty claim evaluates the product itself (as opposed to manufacturer’s conduct); and (2) in Delaware, there is no privity requirement for maintaining a cause of action based on breach of warranty.


Definition of “Defect” (DELAWARE)


A product is defective when it involved an unreasonable risk of causing physical harm to those who use it for a purpose for which the manufacturer should expect it to be used and to those whom he should expect to be endangered by its probable use [Brower v. Metal Indus., 719 A.2d 941 (Del. 1998)].


Goods to be merchantable must be at least such as: (1) pass without objection in the trade under the contract description; and (2) in the case of fungible goods, are of fair average quality within the description; and (3) are fit for the ordinary purposes for which such goods are used; and (4) run, within the variations permitted by the agreement, of even kind, quality and quantity within each unit and among all units involved; and (5) are adequately contained, packaged, and labeled as the agreement may require; and (6) conform to the promises or affirmations of fact made on the container or label if any [6 Del.C. § 2-314].


Liability of Sellers (DELAWARE)


It is a defense to an action against a seller if the seller establishes that: (1) the product was acquired and then sold or leased by the seller in a sealed container and in unaltered form; (2) the seller had no knowledge of the defect; (3) in the performance of the duties the seller performed or while the product was in the seller’s possession could not have discovered the defect while exercising reasonable care; (4) the seller did not manufacture, produce, design or designate the specifications for the product, which conduct was the proximate and substantial cause of the claimant's injury; (5) the seller did not alter, modify, assemble or mishandle the product while in the seller’s possession in a manner which was the proximate and substantial cause of the claimant's injury; and (6) the seller had not received notice of the defect from purchasers of similar products [18 Del.C. § 7001].

The defense is not available if: (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 [18 Del.C. § 7001].

"Sealed container" means a box, container, package, wrapping, encasement or housing of any nature that covers a product so that it would be unreasonable to expect a seller to detect or discover the existence of a dangerous or defective condition in the product.  A product is deemed to be in a sealed container if the product, by its nature and design, is encased or sold in any other manner making it unreasonable to expect a seller to detect or discover the existence of a dangerous or defective condition [18 Del.C. § 7001].

"Seller" means a wholesaler, distributor, retailer or other individual or entity other than a manufacturer that is regularly engaged in the selling of a product whether the sale is for resale by the purchaser or is for use or consumption by the ultimate consumer.  "Seller" includes a lessor or bailor regularly engaged in the business of the lease or bailment of the product [18 Del.C. § 7001].

Defenses (DELAWARE)      


Comparative Negligence – Delaware follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [10 Del.C. § 8132].


Assumption of Risk – Assumption of Risk (“AOR”) is divided into two categories: “primary AOR,” referring to cases where the plaintiff expressly relieves the defendant from all legal duty, and “secondary implied AOR,” a plaintiff's deliberate and unreasonable choice to encounter a risk created by another’s breach of duty. The doctrine of secondary implied AOR has been subsumed within a comparative fault analysis.  Where the AOR is of the primary type (a bargained-for, agreed-upon shifting of the risk of harm), a plaintiff's conduct might constitute a complete bar to recovery [Spencer v. Wal-Mart Stores East, LP, 930 A.2d 881 (Del. 2007)].

Product Misuse – A plaintiff’s misuse is a complete defense where the misuse was not a use reasonably foreseen by the manufacturer and the misuse is an intervening or superseding cause of plaintiff’s injures [See Delaware Superior Court Civil Pattern Jury Instruction 9.11, citing 6 Del.C. § 2-314(c) (warranty applies only to ordinary purposes for which such goods are used)].


Product Alteration/Modification – Manufactured may be relieved of liability if the alteration/modification was the actual and proximate cause of the injury [Lynch v. Athey Products Corp., 505 A.2d 42 (Del. Super. Ct. 1985)].

Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (DELAWARE)


ELD is recognized/applied in cases involving a product damaging itself [Danforth v. Acorn Structures, Inc., 608 A.2d 119 (Del. 1992)]. 



Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (DELAWARE)


While a manufacturing defect may sometimes be proven by circumstantial evidence alone, that is only the case where the manufacturer's fault is the only reasonable inference to be drawn from the evidence.  To substantiate a prima facie claim for breach of warranty, a plaintiff must present either expert testimony that the product was defective, or such circumstantial evidence as indicates a manufacturing defect is the only reasonable cause of the defect [McLaren v. Mercedes Benz USA, LLC, 2006 Del. Super. LEXIS 406 (Del. Super. Ct. 2006)].

Design Defects (DELAWARE)


A manufacturer of a chattel made under a plan or design which makes it dangerous for the user for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design [Franchetti v. Intercole Automation, Inc., 529 F. Supp. 533 (D. Del. 1982)].


A manufacturer owes a duty to use reasonable care, skill, and diligence in designing its product so as to minimize all foreseeable risks. A manufacturer must reasonably anticipate the environment in which the product is normally used and must design the product to minimize foreseeable risks of harm that may result from using the product in such an environment.  To determine whether defendant acted reasonably in designing the product, the jury may consider: (1) the purpose of the product; (2) its usefulness and desirability; (3) the likelihood of injury from its ordinary use; (4) the nature and severity of likely injury; (5) the obviousness of danger in the ordinary use of the product; (6) the ability to eliminate the danger without making the product less useful, or creating other risks to the user; (7) the availability of a feasible alternative design; (8) the cost of any alternative design; and (9) the likelihood of consumer acceptance of a product with an alternative design.  Although a manufacturer has a duty to exercise reasonable care, the manufacturer is not required to design a product that is foolproof or incapable of producing injury [Delaware Superior Court Civil Pattern Jury Instruction 9.5]


Evidence of a nationally accepted standard is admissible in a design failure case [Slover v. Fabtek, Inc., 517 A.2d 293 (Del. Super. Ct. 1986)].





Failure to Warn (DELAWARE)


Even if a product is not defective, it still may be found defective if a manufacturer fails to fulfill its duty to warn. The duty to warn arises when a manufacturer places into the stream of commerce a product which, to his knowledge, involves dangers to users.  The standard for determining the duty of a manufacturer to warn is that which a reasonable or a reasonably prudent person engaged in that activity would have done, taking into consideration the pertinent circumstances at that time [Betts v. Robertshaw Controls Co., 1992 Del. Super. LEXIS 528 (Del. Super. Ct. 1992)].

A manufacturer has no duty to warn if it reasonably perceives that the potentially dangerous condition of the product is readily apparent or may be disclosed by a mere causal inspection, and it cannot be said that only persons of special experience will realize that the product's condition or characteristic carries with it a potential danger.  The determination of whether a product's potential danger is of an obvious character in an objective test. Under this objective test, focus is on the typical user's or consumer’s knowledge and whether the risk is fully apparent, widely known or commonly recognized by such persons [Macey v. AAA-1 Pool Builders & Serv. Co., 1993 Del. Super. LEXIS 152 (Del. Super. Ct. 1993)].


There is no heeding presumption since Delaware has not adopted strict liability.





Independent Cause of Action for Evidence Spoliation (DELAWARE)


Separate causes of action for negligent and intentional spoliation of evidence would not be recognized, given existence of adequate criminal remedy [Lucas v. Christiana Skating Center, Ltd., 722 A.2d 1247 (Del. Super. 1998)].