Delaware's rule: barred only when you exceed the defendant
Under 10 Del. C. § 8132, contributory negligence does not bar recovery in a negligence action as long as the claimant's negligence was not greater than the defendant's. Damages are diminished in proportion to the claimant's own degree of fault — but only once that fault actually exceeds 50%, reaching 51%, does recovery get barred entirely.
The 50/51 distinction, precisely
A claimant found exactly 50% at fault still recovers half of their damages under Delaware's rule, because 50% is not greater than the defendant's 50%. A claimant found 51% at fault recovers nothing at all. This precise phrasing is what makes Delaware a genuine "51% rule" state, more forgiving than the smaller group of states that bar recovery at fault merely equal to the defendant's.
Worked example
Someone with $100,000 in damages, found 30% at fault, recovers $70,000 — reduced by their own share, since 30% is less than the defendant's 70%. That same person, found 51% at fault instead, recovers nothing at all, even though their share of responsibility only shifted by a single percentage point past the midpoint.
Who decides the percentage
The trier of fact — typically a jury, where a case reaches trial — compares the negligence of the claimant against the negligence of the defendant. In the far more common scenario of a negotiated settlement, this same comparison is effectively worked out between the parties based on the available evidence.
Why the fight over fault stays intense near the 50/51 line
Because the practical difference between a 50/50 finding and a 51/49 finding is the difference between a substantial recovery and zero, insurers have a real, concentrated incentive to argue a claimant's fault upward toward that exact threshold. See our guide to how adjusters build a fault argument in Delaware for what that negotiation actually looks like.