Delaware Car Accident and Personal Injury Laws



If you've been injured in a car accident in the State of Delaware, you may have questions about how the laws will affect your property damage and/or personal injury claim. In this article, we'll review the laws most commonly associated with car accidents. To read the entirety of each law, click the link to the specific State of Delaware statutes in each section.

Here are the Delaware car accident and traffic laws we'll cover:

Pedestrian Laws

Pedestrians and Crosswalks

The driver of a vehicle must stop and yield the right of way to a pedestrian crossing the roadway within a crosswalk when the pedestrian has reached the halfway point of the crosswalk, or when the pedestrian is approaching so closely from the opposite half of the crosswalk as to be in danger.
Section 21-41-05-4142

Restrictions on Pedestrians Crossing Roadways

No pedestrian must not suddenly leave a curb or other place of safety and run or walk into the path of traffic that is so close that it might constitute an immediate hazard.
Section 21-41-05-4142

Pedestrian Control Signals

Whenever special pedestrian control signals, exhibiting the words Walk or Don't Walk are in place such signals shall indicate as follows:

  1. Walk or flashing Walk. Pedestrians facing such signal may proceed across the roadway in the direction of the signal and shall be given the right of way by the drivers of all vehicles.
  2. Don't Walk or flashing Don't Walk or Don't Start. No pedestrian shall start to cross the roadway in the direction of such signal, whether flashing or steady. Any pedestrian who has partially completed the pedestrian's crossing on the Walk signal shall complete the crossing to a sidewalk or safety island.
Section 21-41-02-4109

Crossing at Other Than Crosswalks

Pedestrians intending to cross a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles on the roadway.

Pedestrians must use only the marked crosswalk to cross between two adjacent intersections that have traffic-control signals in operation.

Pedestrians can cross an intersection diagonally only when it is authorized by traffic-control devices.
Section 21-41-05-4143

Pedestrians on Roadway

Where sidewalks are provided, it is unlawful for any pedestrian to walk along and upon adjacent roadway.

Where sidewalks are not provided, pedestrians are permitted to walk only on or along the left side of the roadway or on it's shoulder facing traffic from the opposite direction.
Section 21-41-05-4146

Pedestrians' Right of Way on Sidewalks

The driver of a vehicle must yield the right of way to any pedestrian on a sidewalk.
Section 21-41-05-4151

Drivers to Exercise Due Care

The driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the driver's horn when necessary.

Drivers must also exercise proper precaution upon observing any child, any obviously confused or incapacitated person, or a person wholly or partially blind who is carrying a cane or walking stick white in color or white tipped with red or accompanied by a guide dog.
Section 21-41-05-4144

Pedestrians Under the Influence of Alcohol or Controlled Substance

No person shall walk or be upon a Delaware highway while under the influence of intoxicating liquor and/or narcotic drugs to a degree which renders the person a hazard.
Section 21-41-05-4149

Driving Laws

Obedience to Traffic Control Devices

A driver must obey any traffic control devices applicable to the driver, unless directed by a traffic or police officer.
Section 21-41-02-4107

Driving on Right Side of Roadway

Drivers must drive in the right lane of roadways with the following exceptions:

  • When passing another driver in the same direction
  • When there is an obstruction in the right lane
  • Upon a roadway with three lanes for traffic
  • Upon a roadway restricted to one way traffic
Section 21-41-03-4114

Passing On the Left

Driver proceeding in the same direction must pass to the left at at a safe distance and shall remain in the passing lane until it is safe to return to the right lane. Drivers being passed must not increase the speed of their vehicle until their vehicle is completely passed by the overtaking car.
Section 21-41-03-4116

Limitations on Overtaking on the Left

Drivers may drive to the left side of the center of the roadway in overtaking and passing another vehicle only if the left side is clearly visible and the overtaking vehicle can return to its lane without coming interfering with oncoming traffic.
Section 21-41-03-4118

Passing On the Right

Drivers may pass on the right under the following conditions:

  • When the driver about to be passed is about to make a left turn. However, the driver attempting to pass on the right must not do so without driving off the pavement of main-traveled portion of the roadway.
  • When the roadway has two (2) or more lanes of traffic moving in the same direction.
  • On a one-way street where the roadway is free from obstructions and wide enough for two or more lines of moving vehicles.

Section 21-41-03-4117

Following Too Closely

A driver must not follow another driver more closely than is "reasonable and prudent", having due regard for the speed of other drivers and traffic conditions along the roadway.

A driver who is towing another vehicle must leave sufficient space ahead of their vehicle (no less than 300 feet) to allow an overtaking vehicle to enter and occupy this space without danger.
Section 21-41-03-4123

Drivers and Mobile Electronic Devices

Drivers must not use a handheld mobile electronic device while their vehicle is in motion, except for the sole purpose of contacting emergency services.
Section 21-41-09-4176C

Drivers and Intersections

When two (2) drivers approach an intersection at approximately the same time the driver on the left must yield to the driver in the right.
Section 21-41-04-4130

Drivers Intending to Turn Left at Intersections

A driver who intends to turn left at an intersection, or into an alley, private road or driveway must yield the right of way to drivers approaching from the opposite direction.
Section 21-41-04-4133

Drivers Entering or Crossing a Roadway

A driver about to enter or cross a roadway from any place other than another roadway must yield the right of way to all vehicles on the roadway to be crossed.
Section 21-41-04-4133

Bicycling Laws

Bicyclists must obey the same traffic laws as drivers of cars, and are subject to the same penalties as are drivers for violating traffic laws.
Section 21-41-12-4193

Motorcycling Laws

Helmet Law

All motorcyclists must wear helmets while riding on roadways.
Section 21-41-11-4185

Motorcycles and Headlights

Every motorcycle must have at least one and not more than two headlights.
Section 21-43-02-4333

Driving Offenses and Accident Requirements

Careless Driving

A driver who operates a vehicle in a careless or imprudent manner, or without due regard for road, weather and traffic conditions then existing, is guilty of careless driving.

A driver who operates a vehicle and who fails to give full time and attention to driving or fails to maintain a proper lookout while driving is guilty of inattentive driving.
Section 21-41-09-4176

Reckless Driving

A driver who drives in willful or wanton disregard for the safety of persons or property is guilty of reckless driving, and can be fined and imprisoned.
Section 21-41-09-4175

Alcohol and Minors

A driver under the age of twenty one (21) must not drive upon any roadway after drinking alcohol or having a blood alcohol concentration (BAC) of 0.02% or higher.
Section 21-41-09-4177L

Driver's Duty to Give Information and Render Aid

A driver involved in an accident resulting in injury or death to any person must give their name, their address, the registration number of their car, and exhibit their driver's license to any property owners and any drivers and passengers involved in the collision.

Moreover the driver must render to any person injured in the accident reasonable assistance, including making of arrangements to transfer the injured person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent medical treatment is required.
Section 21-42-4201

Accidents Involving Death, Personal Injury, or Substantial Bodily Injury

A driver involved in an accident resulting in injury or death to any person must give their name, their address, the registration number of their car, and exhibit their driver's license to any property owners and any drivers and passengers involved in the collision.

Moreover the driver must render to any person injured in the accident reasonable assistance, including making of arrangements to transfer the injured person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent medical treatment is required.

The driver must also report the accident to the nearest police agency.
Sections 21-42-4201, 4202, and 4203

Accidents Involving Only Damage to Another Car or Property

A driver involved in an accident resulting only in damage to property or another car which is driven or attended by any person must give their name, their address, the registration number of their car, and exhibit their driver's license to any property owners and any drivers and passengers involved in the collision.

If the property damage totals $500 or more, or if it appears any drivers involved in the collision are impaired by alcohol or drugs, then the driver must also report the accident to the nearest police agency.
Sections 21-42-4201, 4202, and 4203

Driver's Duty to Notify Police Department

A driver involved in an accident where any driver is impaired by alcohol or drugs, or an accident resulting in injury, death, or property damage totalling $500 or more must immediately give notice to the nearest police agency.
Sections 21-42-4201, 4202, and 4203

Open Alcohol Container Law

While it is illegal to drink before driving or while driving in Delaware, there is no legislation that specifies the legality of possessing an opened container of alcohol in a vehicle.
Sections 21-41-09-4177 and 21-41-09-4177J

Driving Under Influence of Alcohol or Controlled Substance

A driver must not drive while under the influence of alcohol, drugs, or a combination of both. In Delaware, a driver is guilty of the offense of Operating a Vehicle Under the Influence if the driver has a blood alcohol concentration (BAC) is 0.08% or higher.
Section 21-41-09-4177

Ignition Interlock Device

A driver who is guilty of driving while under the influence of an intoxicant might be ordered to have installed at his or her own expenses an ignition interlock device. The ignition interlock device will serve to restore the driver's driving privileges during the pendency of the driver's probation. If an ignition device is installed, it must be installed in every car owned or operated by the driver.

An ignition interlock is a device which measures any amount of alcohol contained in a driver's body. Before starting the car the driver must blow into a tube emanating from the ignition interlock device. If the device then detects a blood alcohol concentration (BAC) higher than is permitted by law the car will not start and the violation will be reported to the prosecutor, the probation officer, and/or the judge. At that point the driver may be subject to loss of driving privileges, immediate arrest and incarceration up to the maximum term provided by law.
Section 21-41-09-4177C

Liability Laws

Delaware & The Dram Shop Law

Delaware has no Dram Shop Law. Dram Shop Law refers to the liability of private social hosts, bars, hotels nightclubs and other commercial establishments who serve alcohol to patrons or to minors for injuries intoxicated patrons or minors cause to third parties such as in car accidents.

In Delaware, it is illegal to sell alcohol to an obviously intoxicated person or to a minor, but the seller is not liable for the actions of an intoxicated person.
Section 4-09-904

Financial Responsibility Car Insurance Minimum Limits

In the State of Delaware, each motor vehicle must be covered by an insurance policy that includes liability coverage of the following amounts for all damages resulting from an accident:

  • At least $15,000 per person
  • At least 30,000 for two or more people
  • $5,000 per occurrence for property damage
Section 21-29-01-2902

Delaware Insurance Information

For information about insurance requirements, see the State of Delaware Division of Motor Vehicles website.

Comparative Negligence (51% Rule)

In Delaware, the victim in a car accident can sue the negligent driver for compensation. The victim's liability in causing the accident, their comparative negligence, affects the amount of compensation the victim receives.

If the victim contributed less than 51% of the negligence that caused the accident, then their compensation is reduced by the amount they contributed to the accident.

If the victim contributed 51% or more of the negligence that caused the accident, then the victim is barred from receiving any compensation.
Section 10-81-8132

Example of Comparative Negligence (51% Rule)

One morning, Jackson was driving north on his way to work. At an intersection, he pulled into the left turn lane. At the same time, Melanie approached the intersection from the opposite direction. Suddenly, Jackson turned left into Melanie's lane and their cars collided.

Melanie sustained serious brain injuries and damage to her car, totalling in $100,000 dollars worth of damages.

After their investigation, the police determined that Jackson had failed to yield according to traffic laws. A pedestrian witness told police he saw Melanie texting at the time Jackson's car crashed into Melanie's. As a result, the police issued Melanie a citation for using a mobile device while driving.

Melanie sued Jackson for $100,000 and claimed he was 100% at fault for the accident because he did not yield to her right-of-way. At trial, the jury found Jackson liable for failing to yield the right-of-way. However, the jury also found Melissa liable for using a mobile device while driving and partially responsible for the accident.

The verdict stated Jackson's negligence equaled 70% of the accident, and Melanie's equaled 30%. The jury awarded Melanie only $70,000 dollars.

In the event the jury had found Jackson's negligence equaled 49% of the accident, and Melanie's equaled 51%, the jury would be barred by law from awarding Melanie any compensation for the damages.
Comparative Negligence: Section 10-81-8132
Right of Way: Section 21-41-04-4133
Drivers and Mobile Electronic Devices: Section 21-41-09-4176C

Delaware's No Fault Car Insurance

In Delaware, the law requires car owners to purchase no-fault car insurance. No-fault insurance allows a person, who is injured in a car accident or whose property is damaged, to file a claim with their own car insurance company. No-fault insurance allows a person to avoid pursuing a negligent driver for compensation for damages. No-fault insurance does not compensate for pain and suffering, and the amount of personal injury protection (PIP) insurance purchased by the injured party determines their coverage.

For more information about auto insurance in Delaware, see the Delaware Insurance Comissioner's guide.

Statute of Limitations

Delaware has a two (2) year statute of limitations for property damage and personal injury claims. This means if a driver, passenger, or passerby is injured or sustains property damage at the hands of a negligent driver, the victim must file a claim within the two (2) year period following the accident.
Section 10-81-8107

Small Claims Courts

In Delaware, victims of car accidents can choose to sue the negligent driver in small claims court. The jurisdiction of a small claims court regarding personal injury and property damage is limited to a maximum of $15,000, exclusive of filing fees and court costs.

For information about filing a claim in small claims court, visit the Delaware Judiciary website.

Delaware Government Tort Claims - Sovereign Immunity

In Delaware, it is possible to submit a claim against a governmental agency or its employees for personal injury or property damage as a result of negligence on the part of the governmental agency or its employees. The claim must refer to an lawful action on the part of the governmental agency or employee performed in the scope of their duties.

If the injury or property damage occurred as a result of an unlawful action, then the claimant can sue only the person(s) who caused injury or property damage individually. The governmental agency would not be liable.
Section 10-40-01-4001

Example

If Melissa, an engineer with the Wilmington Planning Department, ran a red light on her way to a worksite and caused an accident, then the City of Wilmington would be liable for the property damage and personal injuries caused her.

If Melissa stopped for a few drinks and became intoxicated before heading to a worksite and causing an accident, then the City of Wilmington can claim sovereign immunity. Melissa performed an unlawful act and was not acting in the scope of her duties when she became intoxicated on her way to the worksite.

To seek compensation for damages, injured parties would have to sue Melissa personally. The determination of whether or not Melissa was acting within the scope of her duties would have to be decided during a trial.

A government tort claim must be filed against the governmental agency responsible for the car accident within two (2) years after the accident.
Section 10-40-01-4001
Section 10-81-8107
NCSL

Sources

State Government of Delaware

Delaware Department of Transportation

Delaware State Legislature

Delaware Code of Laws Database

Delaware Department of Public Safety

Governors Highway Safety Association

Delaware Bar Association

National Conference on State Legislature

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