How to Prove Fault for a Wrongful Death Claim

Here's what you'll need to prove to show that a third party is responsible for another's wrongful death.

A wrongful death claim is based on a statute, some version of which is on the books in all 50 states, that permits a civil lawsuit by the heirs of a person who was killed by another person or entity’s wrongful or negligent act. This article discusses what a plaintiff (the heir or heirs) must prove to win a wrongful death case based on a defendant’s alleged negligence.

What is Wrongful Death?

Prior to the creation of wrongful death and survivor statutes in the nineteenth century, the family and heirs of a person killed by another’s negligent or intentional act could not sue for damages because the legal claim (called a “tort”) could only be brought by the injured person. In other words, the claim died when the plaintiff died.

The wrongful death and survivor statutes were created by state legislatures to compensate close family members and other heirs for the death of their family member, including damages for lost financial support, the decedent’s pain and suffering prior to death, funeral expenses and other damages depending on the statute and the context of the case.

Negligence in a Wrongful Death Case

Although the damages available in a wrongful death case might be different from those available in a standard negligence case, a plaintiff must prove the same elements in either kind of lawsuit. These elements are duty, breach of duty, causation and damages.

Proving Duty

For a defendant to be liable for negligence, the defendant must have owed the decedent a duty of “due care.” While the exact definition of due care will vary depending on the facts of the case, it is essentially a duty to do something to keep another person safe, or refrain from doing something that would harm another person.

For example, if the plaintiff is alleging that the defendant was driving negligently when she killed the decedent, the plaintiff would argue that the defendant owed the decedent a duty of due care to operate an automobile as a reasonably prudent person would.

In a wrongful death case, the judge, not a jury, will decide if the defendant owed a duty of due care. A judge will consider a number of factors when deciding whether a duty was owed, including the public policy consequences of finding a duty in all similar cases, how predictable (“foreseeable”) the harm was, how certain it is the harm occurred, how closely connected the defendant’s acts and the harm were, and the defendant’s moral blame.

Proving Breach of Duty

If a duty is determined to exist, the plaintiff must present evidence that the defendant breached that duty. Using the same example from above, the plaintiff might present evidence that the defendant was not paying attention to the road when he struck the decedent. Failing to pay attention to the road is not something a reasonably prudent driver would do, and doing so breached the duty of due care in that situation. As with virtually all elements of a civil case, the plaintiff needs to convince the jury that the plaintiff’s version of the facts are more than 50% likely to be true.

Proving Causation

The plaintiff must next prove that the breach of duty actually caused the decedent’s harm. Using the same example, the plaintiff must prove that it was actually the defendant’s car that struck the decedent and not some other vehicle. If some other car had struck and fatally wounded the decedent before the defendant’s car was involved in the accident, then it is likely the jury will not find that the defendant’s breach of duty caused or contributed to the harm. If the decedent was already seriously wounded, and the defendant’s breach of duty caused a crash that killed the decedent, then the jury will likely find the defendant caused the harm. Depending on the facts of the case, issues of causation can become quite complex.

Proving Damages

Along with breach of duty and causation, the plaintiff must prove that the decedent actually suffered damages. In a wrongful death case, if breach of duty and causation exist, damages will be presumed for obvious reasons (i.e. the injured person was killed). In other negligence cases, it is possible for the plaintiff to prove all the other elements, but lose the case because the plaintiff either did not suffer any real harm or no sufficient evidence existed to prove the nature and extent of the alleged harm.

See this overview on wrongful death claims to learn more about how these types of personal injury cases work.

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