Why the stakes spike right at 51%
Under 10 Del. C. § 8132, most of the time, an extra percentage point of assigned fault simply means a slightly smaller recovery. But for a claim where the facts genuinely put fault somewhere near an even split, that same single point takes on an entirely different weight: the difference between 50% and 51% fault in Delaware isn't a gradual change, it's the difference between a real, proportional recovery and nothing at all.
Where this argument actually comes from
The building blocks of a fault argument in Delaware are familiar: the narrative section of the police report, any recorded statement taken from the claimant, witness accounts, photos or video of the scene and vehicle positions, and any inconsistencies in how the incident has been described over time. What's different in Delaware isn't the type of evidence used — it's how much a small shift in interpretation of that same evidence can matter once the numbers land close to 50%.
Why a recorded statement carries extra weight here
An early, informal recorded statement is worth genuine caution in any state, but the stakes are sharper in Delaware specifically because of the 51% bar. A phrase that shifts an adjuster's internal fault assessment from 45% to 51% doesn't just shrink the payout by six percentage points — it can eliminate it entirely. This is exactly the kind of detail that makes an offhand or imprecise statement far more consequential here than it might be in a pure comparative state.
Why preserving evidence matters more near the line
Because the financial consequence of landing on one side of 51% versus the other is so significant, ordinary evidence — photos of the scene, contact information for witnesses, the exact positioning of vehicles — takes on real weight in a Delaware claim where fault genuinely looks close to even. This evidence is exactly what will ultimately determine which side of the 50/51 line a claim lands on.
Who ultimately decides
If a case goes to trial, the trier of fact — typically a jury — compares the negligence of the claimant against the negligence of the defendant. In the far more common scenario of a negotiated settlement, this comparison is effectively worked out between the parties, with each side arguing for the percentage that favors its position. See our Delaware comparative negligence calculator to see precisely how sharply the outcome changes on either side of that line.