Since 1982, our General Assembly has passed three important laws which have greatly expanded the rights of Delawareans who have been injured, through no fault of their own.  Although the insurance industry lobbied furiously to keep the old laws, the legislature expanded claimant's rights in three distinct areas:  elimination of contributory negligence, elimination of the Guest Statute, and expansion of wrongful death claims.

    1.  Contributory Negligence.  Picture this situation.  You are driving your car at 35 m.p.h. in a 25 m.p.h. zone.  You have the green light and are proceeding through an intersection.  To your right, you notice another car that is going straight through a red light and it collides with the right front portion of your car.  You are severely injured and suffer from extreme neck and back pain.  Do you have the right to sue the other driver of the car?

    Until July 17, 1984, the answer in Delaware was probably not.  Under prior state law, called contributory negligence, if an injured party was even the slightest bit negligent in causing an accident, he could lose his claim for pain, suffering, inconvenience and permanent injury.  The doctrine of contributory negligence is an "all or nothing" concept created by English judges in 1809.  By 1990, even England had abandoned the doctrine,  This harsh law was finally changed in Delaware, through the guidance of the Delaware Trial Lawyers Association.

    Delaware substituted a "comparative negligence" law which works in the following way:  recovery is simply decreased by the degree of your negligence.  Thus, in the above situation, if you were 5 percent responsible for causing this accident (speeding through the intersection), your recovery would be reduced only 5 percent.  The only requirement of the law is that you are less than 50 percent at fault in causing the accident.

    Although it is still too early to fully evaluate the law's impact, many lawyers believe it will result in an increase of out of court settlements and less litigation.  Under the prior law, insurance companies always could argue before a jury that the injured claimant was at least a bit negligent in causing this accident.  If the jurors believed that, they were required by law to return a verdict against the injured claimant.  Under the current law, this is no longer a useful strategy in denying benefits.  Thus, legitimate claims will probably be settled faster.

    2.  Elimination of the Guest Statute.  From 1943 until June 23, 1983, Delaware had an antiquated law known as the Automobile Guest Statute.  It provided that a passenger could not sue the driver of a car if the guest was injured as a result of the driver's negligence.  For instance, if you were riding in a vehicle before June 23, 1983, and the driver went through a stop sign, collided with a motorcycle, and injured you, only the driver of the motorcycle could recover against the driver of the car.  You were totally prohibited from making any recovery under the Guest Statute.  However, if you had paid $1.00 to the driver for gas, you may have been permitted recovery because you were not a "guest".

    Fortunately, our General Assembly repealed this archaic law on June 23, 1983.  An injured passenger may now sue the negligent driver for his or her negligence.  Thus, the harsh and unfair results discussed above have been eliminated in automobile accident cases.

    3.  The Wrongful Death Act.  On June 26, 1976, a 17-year-old boy was killed in Kent County when the driver failed to negotiate a turn and the car became airborne, striking a tree.  The youth's parents sued the negligent driver for compensation.  As reported in the News-Journal papers on Nov. 5, 1980, the jury awarded only $10,000 to the surviving parents and no funds were awarded for funeral expenses, emotional pain, suffering, mental anguish or loss of society and companionship that the parents suffered as a result of the death of their minor child.  This verdict was entirely reasonable under Delaware's prior Wrongful Death Act.  Fortunately, in December, 1982, a new statute was passed which expanded recovery.  Not only were the provisions of the old law included, the law also expanded the right to recover for the lost of parental and marital services.  Reasonable funeral expenses not exceeding $2,000 were also included.  The law now also allows recovery for the "mental anguish resulting from the death;" however, only the deceased's surviving spouse and children are permitted to recover.  Under the new law, the court or jury will now be able to address the basic question caused by the death of a child: the emotional pain of the loss.  Had the law been different in 1976, the verdict discussed above would no doubt have been more substantial.

    The battle for claimants' rights is not yet over since the insurance industry continues to assault the inroads made in the past with new initiatives.  It is to be hoped that our legislature will continue to view the issue of claimants rights in Delaware as an important issue which requires vigilance.  We must prevent our laws from becoming as archaic, and one-sided as they had been prior to the changes discussed in this article.

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