Generally, no. If you miss Delaware’s two-year personal injury statute of limitations under 10 Del. C. § 8119, your case will be dismissed. However, narrow exceptions exist, including the discovery rule, tolling for minors, fraudulent concealment, and government claim notice requirements that may extend or alter the deadline.
One of the most painful consultations is with someone who has just learned they may have missed the deadline to file a Delaware personal injury claim. While the general rule is strict, exceptions exist. A consultation with a Delaware attorney is essential before assuming your case is dead.
The Detailed Answer
Delaware statutes of limitations are firm but contain narrow exceptions that may apply.
The General Rule
Under 10 Del. C. § 8119, most Delaware personal injury claims must be filed within two years of the date of injury. Wrongful death actions must be filed within two years under 10 Del. C. § 8107. Once the deadline passes, the defendant can move to dismiss and the court will grant the motion absent an applicable exception.
The Discovery Rule
Delaware applies the discovery rule in certain cases, particularly medical malpractice and toxic exposure cases. The clock may not start until the plaintiff knew or reasonably should have known of the injury and its cause. See tolling principles for details.
Minors
Delaware tolls the statute of limitations for minors under 10 Del. C. § 8116. The two-year clock generally does not begin running until the minor reaches age 18. This applies broadly to most personal injury claims involving children.
Fraudulent Concealment
If the defendant fraudulently concealed the wrongful conduct, Delaware courts may equitably toll the statute. The plaintiff must show specific concealment, not merely failure to disclose.
Government Claims
Claims against government entities under the Delaware Tort Claims Act have specific notice requirements. Late notice can bar an otherwise timely claim.
Continuing Tort
Some Delaware courts have recognized continuing tort doctrines in cases of ongoing exposure or repeated injury, where the clock may run from the last act rather than the first.
What This Means for Your Case
Even if you believe the deadline has passed, consult an attorney immediately. The discovery rule, minor tolling, or other exceptions may save your claim. Conversely, even if you believe you have plenty of time, government claim notice requirements may impose much shorter deadlines. Read about medical malpractice timing and wrongful death.
Related Questions
Q: Are there shorter deadlines for any Delaware claims?
Yes. Some government tort claims require notice within months. Workers’ compensation has different deadlines.
Q: Does filing a workers’ comp claim toll the personal injury statute?
No. They are separate proceedings with separate deadlines.
Q: What if the defendant left Delaware?
Delaware tolls the statute under 10 Del. C. § 8117 for periods when the defendant was outside the state, in some circumstances.
When to Talk to a Delaware Personal Injury Lawyer
Statute of limitations issues require immediate attention. Joseph M. Jachetti has experience evaluating Delaware deadline issues. Free consultations: (302) 984-1000. Visit his firm profile for more information.
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This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.
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This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.