Quick Answer Tolling means pausing or delaying the running of the statute of limitations clock. Delaware recognizes several tolling doctrines including the discovery rule (for hidden injuries), minor tolling under 10 Del. C. § 8116, which pauses the claim until 3 years after the minor turns 18, and fraudulent concealment… A minor generally has until age 21 to file. Tolling can preserve claims that would otherwise be time-barred.
Tolling is a technical but critical concept in Delaware personal injury law. When a plaintiff cannot reasonably discover an injury or is legally incapacitated, strict application of the two-year deadline would be unjust. Tolling doctrines provide narrow but important exceptions.
The Detailed Answer
Delaware tolling doctrines fall into statutory and common-law categories.
The Discovery Rule
Delaware courts apply the discovery rule in specific contexts, including medical malpractice cases, latent injury cases, and toxic exposure cases. Under the rule, the statute begins running when the plaintiff knew or, with reasonable diligence, should have known of the injury and its wrongful cause. Delaware case law has developed the discovery rule’s contours over many decades.
Minor Tolling
Under 10 Del. C. § 8116, the statute of limitations is tolled for minors. The clock generally begins running when the minor turns 18. This applies to most personal injury actions involving children, giving them until age 20 to file.
Mental Incapacity
10 Del. C. § 8116 also addresses mental incapacity. Delaware courts have recognized tolling when the plaintiff was unable to manage their affairs due to mental illness or disability.
Fraudulent Concealment
If the defendant took affirmative steps to conceal the cause of action — for example, a doctor who altered records or falsely reassured a patient — Delaware courts may equitably toll the statute. Mere silence is generally not enough; affirmative concealment is typically required.
Defendant’s Absence from Delaware
Under 10 Del. C. § 8117, the statute may be tolled while a defendant is absent from Delaware in some circumstances, although service-of-process modernization has narrowed this doctrine.
Continuing Treatment Doctrine
In medical malpractice, Delaware courts may consider when continuing treatment by the same provider tolls the statute until treatment ends.
What This Means for Your Case
Tolling is fact-specific and technical. Whether tolling applies depends on the precise circumstances of your case and the timing of your knowledge. Never assume tolling applies — assume the standard deadline applies and consult an attorney immediately. See related guides on missed deadlines and medical malpractice cases.
Related Questions
Q: Does tolling apply to all Delaware claims?
No. Statutory and common-law tolling doctrines apply differently across claim types. Government claims have their own notice rules that may not be tolled.
Q: How long can a claim be tolled for a minor?
Generally until 3 years after the minor turns 18 — meaning age 21 — under 10 Del. C. § 8116.
Q: Who decides if tolling applies?
The court decides tolling issues, typically on a defense motion to dismiss or for summary judgment.
When to Talk to a Delaware Personal Injury Lawyer
Tolling issues require precise legal analysis under Delaware’s statutes and case law. Joseph M. Jachetti has experience evaluating Delaware tolling issues. Free consultations: (302) 984-1000.
Free Consultation
Free consultation. No fee unless we recover compensation for you.
📞 Call (302) 984-1000
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.
Have a Question About Your Case?
Get a free, confidential consultation with a Delaware attorney.
📞 Call (302) 984-1000
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.