Beyond Comparative Negligence: Contributory Recklessness Survives in Delaware

In Steward L. Northan, Jr., v. Kelly Thomas, and Russell Travis Hovatter, S23C-03-006 CAK, the Delaware Superior Court explained that the Delaware comparative negligence statute, 10 Del. C. § 8132, did not abrogate the preexisting common law defense of contributory recklessness. Contributory recklessness exists when a plaintiff, with no intent to cause harm, performs an act which is so unreasonable and dangerous that he either knows or should have known that there would be an eminent likelihood of harm. It acts as a complete bar to a plaintiff’s negligence recovery. In that sense, it operates very much like the defense of contributory negligence, which the Delaware comparative negligence statute had abrogated.

In making this finding, the Northan Court reasoned that the Delaware comparative negligence statute referenced the term negligence six times but the term recklessness not at all. The Court observed that if the Delaware General Assembly had intended to abrogate contributory recklessness through the Delaware comparative negligence statute, then it could have easily said so and done so. Further, statutes in derogation of common law, such as the Delaware comparative negligence statute, must be strictly construed. Strict construction permitted only one reasonable interpretation.

The Northan Court’s finding upholding the viability of contributory recklessness under Delaware law had a profound impact in that case, which was a wrongful death matter. In Northan the Decedent had been operating his motorcycle at approximately 140 miles per hour when he collided with the bumper of defendant’s vehicle. The Northan Court held that “[d]ecedent demonstrated a reckless disregard for his own safety as well as the safety of others, and in doing so was contributorily willful, wanton, and reckless.” The Court then granted a defense motion for summary judgment on that same basis thereby terminating the litigation.