Personal Injury

How Long Do I Have to File a Personal Injury Lawsuit in Delaware?

By David Goguen, J.D., University of San Francisco School of Law
It's crucial to pay attention to Delaware's statute of limitations for personal injury lawsuits. Miss the filing deadline set by this law, and chances are your injury lawsuit is over before it gets started.

If you are considering making a personal injury claim in Delaware, you need to understand and abide by the statute of limitations as it applies to your potential lawsuit. For those unfamiliar with the term, a “statute of limitations” is just a law that puts a strict time limit on your right to file a lawsuit in the state's civil court system. Every state has these laws on the books, and there are usually different deadlines depending on the kind of case you want to file.

The statute of limitations that applies to almost all kinds of personal injury claims in Delaware can be found at Delaware Code Title 10, Section 8119. This statute gives you two years to ask the state courts for a civil remedy for any kind of incident in which someone else caused you harm, whether accidentally or on purpose.

In plain English, that means whether we’re talking about a car accident, slip and fall, or any other kind of mishap or intentional action, you have two years to get any civil complaint filed against the person who caused your injuries, and the “clock” starts running on the date of the underlying incident. (Learn more about What is Included in a Personal Injury Complaint?)

Even if you don’t think you’re going to file a personal injury lawsuit -- maybe you’re well into the insurance settlement process -- it's still important to keep the statute of limitations in mind. You always want to make sure you have the option of taking your case to court. Lose that option, and you lose your negotiating leverage during injury settlement talks. (Learn more about The Role of Insurance in Settling an Injury Claim.)

What happens if you don't get your personal injury lawsuit started before Delaware's two-year window closes? In that situation, you can bet that the person you are trying to sue will ask the court to dismiss your lawsuit, and unless some exception applies to extend the deadline (more on these below) the court will grant the request. If that happens, you’re left with no way to hold the other party responsible for your injuries and other losses.

Exceptions to the Running of the Statute of Limitations “Clock” in Delaware

The running of the two-year statute of limitations “clock” can be paused or “tolled” in some situations in Delaware, meaning the filing deadline is extended. One of the most common of these exceptions can be found at Delaware Code Title 10, section 8117, which says, in the context of a personal injury lawsuit:

  • If the defendant is outside of the state of Delaware when the case arises, the case may be commenced within the two-year period after the defendant comes into the state if, by “reasonable diligence,” the defendant may be “served with process.” (Learn more about serving the defendant in How and Where Do I File a Personal Injury Lawsuit?)

  • If, after the case arises, the defendant “departs from and resides or remains” out of the state of Delaware, the time of the defendant's person's absence shall not be taken as any part of the two-year period for getting the personal injury lawsuit filed.

That's just one example of when the two-year statute of limitations deadline for personal injury cases might be extended in Delaware. If you have specific questions about the application of the statute of limitations to your potential case, or about the lawsuit process in general, find a Delaware personal injury attorney.

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