Personal protective equipment matters on a construction site, and OSHA standards require employers to provide head protection where overhead hazards exist. But many injured workers worry that one lapse — a missing hard hat, a removed earplug, an unbuckled harness — will end their case before it begins. Delaware law is more forgiving than that.
The Detailed Answer
Delaware uses modified comparative negligence to allocate fault in personal injury cases. The rule is set out at 10 Del. C. § 8132.
How Modified Comparative Negligence Works
A jury or fact-finder assigns a percentage of fault to each party who contributed to the accident. The injured party’s recovery is reduced by that party’s share of fault. If the injured party’s share exceeds 50%, recovery is barred. If it is 50% or less, recovery is reduced but not eliminated.
Hard Hat Use as Evidence of Fault
If you were required to wear a hard hat and chose not to, the defense may argue you bear some share of responsibility for head injuries that resulted. The strength of that argument depends on:
- Whether the hard hat would have prevented or reduced your specific injury
- Whether your employer enforced the rule or looked the other way
- Whether a hard hat was provided and accessible
- What other safety failures contributed to the accident in the first place
Employer Duties to Enforce
OSHA’s PPE standards at 29 CFR 1926.95 and 1926.100 require employers to provide and ensure use of head protection. An employer that does not enforce its own safety rules cannot fairly point to those rules to escape responsibility.
The Underlying Hazard
Even if you bear some fault for not wearing a hard hat, the question of why something fell on your head still matters. If a contractor stacked materials improperly, failed to install toe boards, or violated falling object protection requirements, that contractor’s fault is still in the mix.
What This Means for Your Case
Not wearing PPE is rarely the end of a Delaware construction case. It is one factor a jury weighs against the larger picture of how the hazard was created and who failed to control it. Damages may be reduced, but the underlying claim usually proceeds. The two-year statute of limitations under 10 Del. C. § 8119 applies, and an attorney can evaluate how comparative negligence is likely to play out given your specific facts.
Related Questions
Q: What if I was given a hard hat that did not fit?
Improperly fitted PPE may shift the comparative negligence analysis. Employers have a duty to ensure PPE is appropriate for the worker.
Q: What if other workers on the site were also not wearing hard hats?
That can support an argument that the rule was not actually enforced — and that the employer or general contractor bears greater responsibility for the lack of compliance.
Q: Will my workers’ compensation be reduced too?
Workers’ compensation in Delaware does not generally use comparative fault to reduce benefits. Comparative negligence applies to civil third-party claims, not the no-fault workers’ compensation system.
When to Talk to a Delaware Construction Lawyer
Comparative negligence arguments are common defense moves in construction cases. Joseph M. Jachetti — Delaware Bar #003744 — has experience handling Delaware construction claims and previously spent ten years as an insurance claims adjuster, giving him a deep understanding of how insurers analyze these issues. Read more about Joseph, our construction accident practice, and related topics like OSHA fall protection and OSHA’s role in construction cases.
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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.