Liability for Car Accident Wrongful Deaths

According to the National Highway Traffic Safety Administration (NHTSA), car accidents kill more than 35,000 people in the United States each year. On average, there’s one car accident death reported every 12 minutes.

While the number of car accidents has steadily risen over the past 10 years, the number resulting in death has steadily declined. This is due mainly to improved car safety features, including advanced restraint systems, new vehicle construction techniques, crumple zones, force-absorbing materials, and more. All this is limited comfort to you if your loved one has died in a fatal crash.

According to the American Automobile Association, the leading causes of fatal car accidents are:

  • Distracted drivers
  • Driver fatigue
  • Drunk and reckless driving
  • Weather conditions
  • Street and highway defects
  • Car manufacturing defects
  • Inexperienced and/or elderly drivers

Wrongful Death

One of the first questions family members ask is “Why?” Why did we lose our father, mother, son, or daughter suddenly and violently?

Putting aside the emotional, the answer often lies in determining if there was negligence. When the authorities decide that negligence caused a fatal car crash, the legal concept of wrongful death comes to the forefront. A wrongful death claim is a demand a family member or court designee makes on the party whose actions caused the person’s death.

Today, every state has one form or another of a wrongful death statute. Under these statutes, a grieving party has the right to seek compensation for the loss of a loved one. Surviving family members commonly bring these legal actions, but sometimes court-designated trustees can bring them.

In a wrongful death suit, aggrieved (victimized) family members have the right to seek damages for the loss of their loved one. Each state’s wrongful death laws set the type and amount of damages. While some states limit damages, others are more liberal.

For example, in Illinois, a jury may award surviving family members:

…as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, including damages for grief, sorrow, and mental suffering, to the surviving spouse and next of kin of such deceased person.”

In New York:

…the amount of damages determined by a court are what it deems to be fair and just compensation for pecuniary injuries resulting from the decedent’s death. Damages include reasonable expenses for medical aid, nursing, and funeral expenses, in addition to every other lawful element.”

Find your state’s wrongful death law.

Proving Your Wrongful Death Claim

In wrongful death cases, the stakes are much higher than those in nonfatal personal injury claims. Proving a claim begins with three basic points.

1. You must prove someone or some entity was at fault.

For example, if the fatal car crash occurred when the decedent’s car hit a large pothole and flipped over, you can perhaps prove the city or state was at fault, and negligent in not properly maintaining the road or highway.

Or if the fatal crash occurred due to an intoxicated driver, you can possibly prove that the bar owner who last served the driver violated the state’s dram shop laws prohibiting serving alcohol to an already intoxicated patron.

2. A spouse, children, legal beneficiaries, or dependents survive the deceased.

You need to prove your relationship to the deceased. If the decedent was your spouse, you need a wedding license. For children, birth certificates will do. If you’re a beneficiary named in the deceased’s will, you need a copy of the will. If you’re a beneficiary in an insurance policy, you need a copy of the policy.

3. The death of your loved one will result in a pecuniary (monetary) loss.

If the decedent worked at the time of his death and was the father of one or more children, you need proof of the amount of income he would have made during his lifetime. A jury can consider the decedent’s earnings at the time of his or her death. If the decedent was unemployed at the time of death, the jury can consider the decedent’s last known income and possible future income.

Comparative and Contributory Negligence

When considering any car accident death, it’s vital to understand the legal application of comparative and contributory negligence.

Contributory Negligence

In states that adhere to the contributory negligence rule, surviving beneficiaries can’t recover any damages if the decedent in any manner contributed to his or her own death. Many consider this rule extremely harsh.

Nonetheless, in those states that follow the contributory negligence doctrine, if a negligent party can raise the affirmative defense (new facts) proving the decedent even remotely acted in a way that contributed to his death, the decedent’s surviving beneficiaries will receive nothing.

Let’s say a driver ran a red light and crashed head-on into another vehicle, killing the driver of the second car. If the driver who ran the red light can prove the decedent was texting on her cell phone or otherwise distracted, the surviving beneficiaries won’t be eligible to receive any compensation.

Today, the states of Alabama, Maryland, North Carolina, Virginia, and the District of Columbia follow the contributory negligence rule.

Comparative Negligence

The balance of states follow one of two forms of the comparative negligence rule. In these states, a negligent party can raise a defense stating the decedent was partially responsible for the car accident, and therefore partially responsible for his own death. The surviving beneficiaries will then receive a percentage of the final award corresponding to the percentage of the decedent’s negligence.

Using the same example as above, if the negligent party can prove the decedent was texting or otherwise distracted at the time of the crash, the surviving beneficiaries will receive an award reduced by the percentage of the decedent’s own negligence for texting. If the court rules the decedent’s texting accounted for 20% of the cause of the crash, the family will only receive 80% of the total amount of compensation awarded.

Winning a Car Accident Fatality Case

Winning a wrongful death claim requires substantial credible evidence. Unlike minor soft tissue injury claims that you can handle yourself, wrongful deaths always require the expertise of a personal injury attorney with substantial experience in car accident fatality cases. There’s just too much at stake in these cases. The sooner you hire an experienced attorney the better.

Experienced personal injury attorneys have the training and money it takes to thoroughly investigate and win the case. Hundreds of thousands or millions of dollars are at stake in fatality cases. Insurance companies will do everything they can to deny a claim outright. When that doesn’t work, they’ll try to deny it based on contributory negligence. They are also expert at devaluing claims based on comparative negligence, even where none exists.

Most attorneys hire investigators to quickly return to the scene of the crash to look for and measure skid marks, identify road flaws, take digitized close-ups of the most obscure evidence, and more. Investigators will drive to body shops and car storage facilities to do close-up examinations of the cars, all while looking for even a tiny amount of favorable evidence.

Attorneys will hire accident reconstruction specialists who use proprietary computer programs that can recreate in three dimensions the crash as it happened. In addition, attorneys can hire highly experienced forensic car crash experts whose knowledge of biomechanics is invaluable in winning the case.

When it comes to fatal car crash claims, most experienced attorneys will bypass the insurance company and immediately file a lawsuit. Doing so gives the attorney immediate access to records, witness statements, police reports, and more. Also, once he files a lawsuit, the attorney can take the depositions (recorded, sworn statements) of every person who knows anything about the crash, including the driver, their employers, passengers, and other parties.

Attorneys can subpoena video footage from traffic cameras, store surveillance cameras, and even from private individuals who may have taken photos of the crash or its aftermath. They can also secure court orders restraining insurance companies, individuals, and government agencies from destroying or erasing evidence related to the crash.

Most experienced personal injury attorneys fight as hard as possible to win their client’s case. In fatal car crash cases, when attorneys often lay out thousands and even hundreds of thousands of dollars in pretrial preparation, they leave no stone unturned. These attorneys know their legal fees and costs are only reimbursed if they win your case. If they lose, they lose more than just the case; they lose all the time and money they put into it.

Statute of Limitations

The term statute of limitations refers to the amount of time your state allows to either settle your wrongful death claim or file a lawsuit. Missing that deadline means you lose all recourse to recover compensation for the loss of your loved one.

Each state has its own statutory period. Make sure you know that deadline. Keep in mind the limitation period in your state for filing a wrongful death suit may differ from the period for filing another type of personal injury suit.

Class Action Lawsuits

A class action is a lawsuit, normally filed against a large corporation, which includes a large number of people who were similarly and adversely affected by the company’s negligence. Automobile manufacturers frequently issue recalls for vehicles that have dangerous defects or flaws. This usually occurs after one or more people are hurt or killed while riding in their car.

If a loved one was the victim of a fatal car crash and you believe a defective part in the car caused the accident, contact an attorney immediately. You can also go online to see if there already are any wrongful death class action lawsuits about the same defective car part. If the class action is still open to new plaintiffs, you can “opt-in.” You can check class action cases at

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