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22.19 Damages – Settling Co-Defendant

Settling Co-Defendant

When this case began, [plaintiff’s name] alleged in the complaint that the joint negligence of [non-settling-defendant’s name] and [settlingdefendant’s name] was the proximate cause of [plaintiff’s name]’s injuries.  [Before / during] this trial, [settlingdefendant’s name] reached a settlement with [plaintiff’s name] on all of [plaintiff’s name]’s claims against [him/her].  Your deliberations, however, must determine whether [non-settlingdefendant’s name], [settlingdefendant’s name], or both of them were negligent and whether that negligence was the proximate cause of the injuries to [plaintiff’s name].

[Non-settlingdefendant’s name] has asserted a cross-claim against [settlingdefendant’s name], asserting that [his/her] negligence was the proximate cause of the injuries to [plaintiff’s name].  You must determine whether either or both of [defendant’s names] were negligent, and whether that negligence proximately caused [plaintiff’s name]’s injuries.  If you find that either one or both of the defendants were guilty of negligence and that the negligence was a proximate cause of the injuries to [plaintiff’s name], you must then determine the amount of damages you should award to [plaintiff’s name] to compensate [him/her] fairly and reasonably for [his/her] injuries.

{If there was a settlement, add the following}:

In computing these damages, don’t be concerned with the fact that a settlement was made with [plaintiff’s name].  You must not speculate about what [plaintiff’s name] may have or should have received in that settlement.  If you find from the evidence that both [defendants’ names] were guilty of negligence proximately causing [plaintiff’s name]’s injuries, then you should award damages to compensate [plaintiff’s name] for [his/her] fair and reasonable damages in full.  In addition, you should apportion your verdict to attribute a percentage of negligence to each defendant in a percentage range from zero to 100.  You will be provided with a verdict form to guide you in this process.


10 Del. C. ‘ 6301 et seq.; Medical Ctr. of Delaware, Inc. v. Mullins, Del. Supr., 637 A.2d 6, 7-9 (1994); Ikeda v. Molock, Del. Supr., 603 A.2d 785, 786-88 (1991); Blackshear v. Clark, Del. Supr., 391 A.2d 747, 748 (1978); Farrall v. A.C. & S. Co., Del. Super., 586 A.2d 662, 663-66 (1990).

Credit: Delaware Superior Court