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In a summary judgment opinion in the case of Roberts v. DP&L, et. al., released on January 30, 2009, The Honorable Robert B. Young, a judge of the Delaware Superior Court, sitting in Kent County, applied common law negligence principles to the statutorily created Delaware Wrongful Death statute in holding that in order for a beneficiary to recover for pain and suffering for the death of a loved one, the beneficiary must show physical injury. This ruling causes a conflict in Delaware Superior Court opinions and effectively eviscerates the Delaware Wrongful Death statute.

To reach this ruling the court framed the issue thusly:

“The question remains as to whether the general common law regarding the necessity to show physical injury to recover for mental anguish in a tort claim is somehow, altered or abated or diminished when the claim arises out of a statutory wrongful death claim.”

The court, relied on the Delaware Supreme Court case of Merganthaler v. Asbestos Corp. of America, 480 A.2d 647 (Del. 1984) which held “that any claim in mental anguish requires physical injury”, and ruled that Plaintiffs had not presented any evidence of physical injury, required by Merganthaler, to recover for mental anguish or emotional distress.

In order to reach this ruling the Court had to hold contrary to the 1985 Delaware Superior Court opinion of Okie v. Owens, 1985 WL 189292 (Del. Super.).