DEMAND FOR SETTLEMENT - PREMISES LIABILITY / SLIP AND FALL

STATE OF DELAWARE

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Delaware ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of Delaware

DATE: [Date]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL

[Claims Representative Name / General Counsel]
[Property Owner / Management Company / Insurance Company Name]
[Street Address]
[City, State ZIP]

RE: PREMISES LIABILITY DEMAND - SLIP AND FALL
Our Client: [Client Full Name]
Date of Incident: [Date of Fall]
Location of Incident: [Full Address of Property]
Property Owner: [Property Owner Name]
Claim Number: [Claim Number, if assigned]

Dear [Recipient Name]:

This firm represents [Client Name] ("Claimant") for injuries sustained on [Date of Incident] at premises owned and/or controlled by your insured/client, located at [Property Address] in [City], Delaware. This letter constitutes our formal demand for settlement.

I. DELAWARE-SPECIFIC LEGAL FRAMEWORK

A. Statute of Limitations

Under 10 Delaware Code Section 8119, the statute of limitations for personal injury claims arising from premises liability is two (2) years from the date of injury. This claim arises from an incident that occurred on [Date], and therefore the limitations period expires on [Expiration Date].

B. Modified Comparative Negligence (51% Bar Rule)

Delaware follows modified comparative negligence under 10 Del. C. Section 8132. Under this statute:
- A plaintiff may recover if their fault is not greater than the combined negligence of all defendants
- If plaintiff is 50% or less at fault, damages are reduced by the percentage of plaintiff's fault
- If plaintiff is more than 50% at fault, recovery is completely barred

Myers v. Celotex Corp., 594 A.2d 1060 (Del. 1991).

Our client exercised reasonable care at all times and bears no responsibility for this incident.

C. Premises Liability Classification of Entrants

Delaware follows the traditional common law classifications:

1. Invitees (Highest Duty)
An invitee is a person who enters upon the land of another at the express or implied invitation of the landowner for the mutual benefit of both. DiOssi v. Maroney, 548 A.2d 1361 (Del. 1988).

The landowner owes invitees a duty to:
- Exercise reasonable care to keep the premises in a safe condition
- Discover dangerous conditions through reasonable inspection
- Warn of or remedy dangerous conditions that the owner knows or should know of

2. Licensees
A licensee enters with permission for the visitor's own purposes. The owner owes a duty:
- To warn of known dangerous conditions
- Not to willfully or wantonly injure

3. Trespassers
Owed only a duty to refrain from willful or wanton injury.

Our client was a business invitee entitled to the highest duty of care.

D. Notice Requirements Under Delaware Law

Delaware requires proof that the property owner had actual or constructive notice of the dangerous condition:

Actual Notice: The owner or employees had direct knowledge of the condition. DiOssi v. Maroney, 548 A.2d 1361 (Del. 1988).

Constructive Notice: The condition existed for a sufficient period of time that it would have been discovered through the exercise of reasonable care. Martin v. Ryder Truck Rental, Inc., 353 A.2d 581 (Del. 1976).

Factors establishing constructive notice:
- Duration of the condition
- Visibility and location of the hazard
- Inspection procedures and frequency
- Prior similar incidents
- Nature of the business operations

E. Mode of Operation Doctrine

Delaware has recognized a version of the mode of operation doctrine. Under Mundy v. Wal-Mart Stores East, L.P., 2013 WL 6244394 (Del. Super. Ct. 2013) and related cases:
- Where a store's mode of operation creates a recurring risk of hazards
- The storekeeper has a continuing duty to inspect and discover such hazards
- Notice may be inferred from the continuous and foreseeable nature of the risk

However, this does not eliminate the notice requirement but may establish constructive notice where inspection was inadequate.

F. Open and Obvious Danger Doctrine

Delaware recognizes that property owners generally have a reduced duty regarding open and obvious dangers. DiOssi v. Maroney, 548 A.2d 1361 (Del. 1988).

However, the doctrine is not absolute:
- The owner may still be liable if harm is foreseeable despite the obvious nature
- Distraction doctrine may apply
- Goes to comparative fault analysis

G. Natural Accumulation Rule

Delaware follows a version of the natural accumulation rule:
- Property owners generally have no duty to remove natural accumulations of ice and snow during an ongoing storm
- After a reasonable time following a storm, a duty to take reasonable steps may arise
- Liability may exist for unnatural accumulations or conditions aggravated by the owner

Sears, Roebuck & Co. v. Huang, 652 A.2d 568 (Del. 1995).

H. Res Ipsa Loquitur

Delaware recognizes res ipsa loquitur where:
1. The accident is of a kind that ordinarily does not occur without negligence
2. The instrumentality causing the accident was in the defendant's exclusive control
3. The accident was not due to any action of the plaintiff
Nichols v. Wheeler, 74 A.2d 462 (Del. 1950).

I. Landlord vs. Tenant Liability

Delaware landlord liability principles under common law and the Delaware Landlord-Tenant Code (25 Del. C. Section 5101 et seq.):
- Common Areas: Landlord retains duty for areas under their control
- Leased Premises: Generally tenant assumes control, but landlord may be liable for:
- Latent defects known at time of lease
- Conditions violating warranty of habitability
- Areas where landlord retained control
- Covenant to repair

Warranty of Habitability: 25 Del. C. Section 5305 imposes duties on residential landlords.

J. Government Immunity - Delaware Tort Claims Act

Claims against government entities are governed by 10 Del. C. Section 4001 et seq. (County and Municipal Tort Claims Act) and 10 Del. C. Section 4010 et seq. (State Tort Claims Act):

Notice Requirement: Written notice must be filed within one (1) year of injury. 10 Del. C. Section 4013.

Damage Caps:
- State: $300,000 per person, $500,000 per occurrence
- County/Municipal: $300,000 per person, $500,000 per occurrence
(10 Del. C. Sections 4013, 4012)

Exceptions: Immunity retained for discretionary functions.

K. Damage Caps

No caps on compensatory damages against private defendants in most premises liability cases.

Punitive damages are generally not available for ordinary negligence.

II. PRESERVATION OF EVIDENCE - LITIGATION HOLD NOTICE

YOU ARE HEREBY DIRECTED TO IMMEDIATELY PRESERVE ALL EVIDENCE relating to this incident and the subject premises, including but not limited to:

• All surveillance video footage from the date of incident
• Surveillance footage from 48 hours before and after the incident
• Incident/accident reports
• Witness statements
• Maintenance logs and repair records
• Inspection records and checklists
• Snow/ice removal records and contracts
• Weather records from the date of incident
• Prior complaints regarding hazardous conditions
• Prior incidents or falls at the same location
• Photographs of the incident location
• Written policies and procedures for maintenance
• Training records for employees
• All communications regarding the incident

Delaware courts recognize spoliation sanctions. Lucas v. Christiana Skating Ctr., Ltd., 722 A.2d 1247 (Del. Super. Ct. 1998).

III. STATEMENT OF FACTS

A. The Premises

The incident occurred at [Property Address], which is [describe property type]. At all relevant times, [Property Owner Name] owned, operated, maintained, and/or controlled the subject premises.

B. The Hazardous Condition

On the date of the incident, a dangerous and hazardous condition existed on the premises, specifically:

[DESCRIBE THE HAZARDOUS CONDITION IN DETAIL]

C. The Incident

On [Date of Incident], at approximately [Time], our client was lawfully present on the premises as a business invitee when [describe the fall in detail].

D. Notice

[Choose applicable theory:]

Actual Knowledge: Your insured had actual knowledge of the hazardous condition because [describe evidence].

Constructive Knowledge: The hazardous condition existed for a sufficient length of time that your insured should have discovered and remediated it. Evidence includes:
- [Evidence of duration]
- [Evidence of inadequate inspection procedures]
- [Prior similar incidents]

Mode of Operation: [If applicable] Your insured's mode of operation created foreseeable risks requiring continuous inspection, which was not adequately performed.

IV. LIABILITY ANALYSIS

A. Duty of Care

As a business invitee under Delaware law, our client was owed the highest duty of care. Your insured had a duty to:
1. Exercise reasonable care to keep the premises in a safe condition
2. Discover dangerous conditions through reasonable inspection
3. Warn of or remedy dangerous conditions

B. Breach of Duty

Your insured breached its duty of care by:
- Failing to maintain the premises in a reasonably safe condition
- Failing to conduct reasonable inspections
- Failing to discover the hazardous condition
- Failing to warn of or remedy the dangerous condition
- [Additional specific breaches]

C. Comparative Fault Analysis

Our client exercised reasonable care at all times:
- [Describe client's reasonable conduct]
- Our client had no reason to anticipate the dangerous condition
- The hazard was not open and obvious

Our client bears no fault whatsoever for this incident.

D. Causation

The dangerous condition was the direct and proximate cause of our client's injuries.

V. INJURIES AND MEDICAL TREATMENT

A. Summary of Injuries

As a direct and proximate result of the fall, our client sustained the following injuries:

[LIST INJURIES]

B. Medical Treatment

Emergency Treatment:
[Describe emergency care]

Follow-Up Treatment:
[Describe ongoing treatment]

Current Status and Prognosis:
[Describe current condition and prognosis]

VI. DAMAGES

A. Medical Expenses

Future Medical Expenses: $[Amount]

B. Lost Wages

C. Pain and Suffering

[Describe pain and suffering]

D. Summary of Damages

VII. SETTLEMENT DEMAND

Based upon the clear liability of your insured, the severity of our client's injuries, and the substantial damages incurred, we hereby demand:

$[DEMAND AMOUNT]

This demand will remain open for thirty (30) days from the date of this letter, expiring on [Expiration Date].

VIII. DOCUMENTATION ENCLOSED

• Complete medical records and bills
• Photographs of the incident location
• Photographs of injuries
• Weather records (if applicable)
• Incident report (if obtained)
• Employment records and lost wage documentation
• [Additional documentation]

IX. CONCLUSION

The evidence establishes clear liability on the part of your insured under Delaware premises liability law. Your insured's failure to maintain safe premises and conduct reasonable inspections caused our client's serious injuries.

We urge prompt attention to this matter.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
Delaware Bar No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
File

DELAWARE-SPECIFIC PRACTICE NOTES

• 51% Bar Rule: 10 Del. C. Section 8132 - Plaintiff barred if more than 50% at fault.

• Mode of Operation: Delaware recognizes this doctrine in limited form - use to establish constructive notice.

• Traditional Classifications: Delaware uses invitee/licensee/trespasser distinctions.

• Natural Accumulation Rule: Generally no duty during ongoing storm; duty arises after reasonable time.

• Government Claims: One-year notice requirement; damage caps of $300,000/$500,000.

• No Damage Caps: No statutory caps on compensatory damages against private defendants.

• Joint and Several Liability: 10 Del. C. Section 6302 - Modified for defendants less than 50% at fault.

• Venue: Del. Super. Ct. Civ. R. 82 - County where cause of action arose or where defendant resides.

• Prejudgment Interest: 6 Del. C. Section 2301 - Legal rate; may be awarded in court's discretion.

• Offer of Judgment: Del. Super. Ct. Civ. R. 68 - Cost-shifting mechanism.