How To Prove Fault in a Wrongful Death Case

Proving fault in a wrongful death case works like any personal injury case. See how to gather evidence of the at-fault party’s negligence and your damages.

No matter the cause of wrongful death, grieving families deserve to see the at-fault party held responsible for their actions.

Just as importantly, the family deserves compensation to help with their financial and emotional losses.

What to Do After a Death to Protect Your Case

The weeks following the sudden loss of a loved one is not a good time to try figuring everything out on your own. It’s enough to know how to protect the interests of your family.

Beware of Insurance Adjusters

Depending on the circumstances leading to the death of your family member, you may be contacted by the at-fault party’s insurance company.

No matter how sympathetic the insurance representative behaves, be on guard:

  • Don’t let the adjuster come to your home, even to “pay their respects.”
  • Don’t accept or discuss any settlement offer.
  • Don’t answer any questions about your loved one, or give a statement to the adjuster.
  • Don’t sign anything that hasn’t been approved by your attorney.

Insurance companies have a legal duty to defend their insured and minimize payouts. Adjusters won’t hesitate to take advantage of a bereaved spouse or parent if they can get a fast release signed for a lowball settlement amount. They may even try to convince you that your loved one was to blame for what happened.

Protect Yourself with Good Legal Advice

Consult with an experienced wrongful death attorney as soon as possible. Most lawyers offer a free consultation to surviving family members or the personal representative of the estate.

At your initial meeting, the attorney will tell you if you have a valid wrongful death case, and the statutory deadline to file your claim or lawsuit.

With legal representation, you won’t have to deal directly with the at-fault party’s insurance company. Just as important, an attorney can discover all sources of compensation, like personal assets and additional insurance policies that may apply to your case.

Your attorney can get to crucial evidence you won’t be able to obtain on your own, like surveillance films, cell phone records, and other types of evidence requiring a subpoena.

Wrongful death cases arising from medical malpractice, faulty medical devices, and other high-dollar case types should be handled by a specialized law firm that can afford to advance the costs of litigation, expert witnesses, and extensive trial preparation.

Case Example: Wrongful Death Settlement for School Pool Drowning

At a school pool party for band and choir students, 13- year old Alex Pierce slipped below the water. Alex was underwater for at least two minutes before fellow students pulled him up, placing him on a floating backboard. He was floated around on the board for another seven minutes, until paramedics arrived.

No adults, school staff, or student lifeguards attempted to resuscitate Alex before paramedics arrived. Alex had been without oxygen for more than nine minutes, suffering an irreversible brain injury. After a month on life support, Alex passed away.

At first, the school district denied any liability for Alex’s death. His parents, through their attorneys, filed a wrongful death lawsuit against the school district.

When presented with surveillance videos of the drowning and aftermath at the pool, expert witness testimony, and other compelling evidence, the school district settled with the Pierce family for $11 million. The school district also issued an apology, and took steps to ensure adults fully trained in CPR are present at future school events.

Find Out Your Deadline for Filing a Claim

Every state has a statute of limitations for personal injury claims. That means if you fail to settle your claim or file a lawsuit before the statutory deadline, you forfeit the right to pursue financial compensation. In most states, family members or the representatives of the victim’s estate have two years to file a wrongful death case.

Statutory deadlines may be different when:

  • The victim was a minor
  • The death was the result of medical malpractice
  • The death resulted from a criminal act
  • The at-fault party is a government employee or a governmental agency

For example, California state laws impose different deadlines depending on the circumstances that injured the victim. In California, if a government agency, like a county hospital, caused the victim’s wrongful death, the statutory deadline is only six months to file a claim.

California deadlines for claims against non-government medical providers depend on the victim’s age: 

“In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first…

Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period.”  

How to Prove a Wrongful Death Claim

A wrongful death lawsuit is an action filed in court to seek monetary damages from a person (or entity) whose negligence caused another person’s death.

Understanding the Parties Involved

  • The person who died is called the decedent.
  • The persons filing the wrongful death lawsuit are the plaintiffs.
  • The person accused of causing death is the defendant.

The plaintiff is usually a family member, like the parent or spouse of the deceased person acting as the representative of the decedent’s estate, along with other family members.

Plaintiffs often include surviving spouses, biological and adopted children, and others deemed by the court to be beneficiaries of the estate. Friends of the decedent, no matter how close, do not have the right to bring a wrongful death lawsuit.

If the decedent had a will that named an executor or administrator of the estate, the executor might represent the estate in a wrongful death suit, even if they are not a family member.

A wrongful death lawsuit can name one or more defendants, such as:

  • An individual, like a drunk driver
  • A business owner, like the owner of the bar that served the drunk driver
  • An “entity” like a hospital or nursing home
  • A corporation, like the manufacturer of defective machinery
  • A government agency, like a county’s highway department

Proving Fault for the Wrongful Death

To succeed in a wrongful death suit, the plaintiff has the burden of proof to show the defendant was at fault in causing the death of an individual.

A strong wrongful death lawsuit has evidence in support of four elements:

  1. Negligence: You must prove the death was caused by the carelessness, recklessness, or by the negligent actions of the at-fault party. In other words, the person (or business) did something wrong or failed to do what needed to be done to prevent harm. The owner of a dog who mauled a woman to death failed to restrain their dog, as any reasonable dog owner would do.
  2. Breach of Duty: You must establish that the at-fault party owed a duty to the victim and failed in that duty. A daycare center has a duty to protect children in their care. When an unattended toddler is killed after wandering into the street, the daycare center has breached their duty of care.
  3. Causation: To prove that the duty of the at-fault party was breached towards the victim, you must show how the at-fault party’s negligence caused the death of your family member. Your wife would not have died but for the drunk motorist running a red light and crashing into the driver’s side of her car.
  4. Damages: You’ll need evidence of the economic damages (medical expenses, funeral costs, lost wages) and non-economic damages (pain and suffering, loss of consortium) resulting from the untimely death of your loved one.

Evidence Supporting a Wrongful Death Claim

The available evidence will depend on the circumstances surrounding the decedent’s death.

When a defendant has already been convicted in a criminal case of fatally injuring a person, records of their conviction will be extremely helpful in proving fault. If the defendant manages to avoid a conviction, the family can still pursue a civil lawsuit.

Case Summary: Criminal Acquittal No Bar to Wrongful Death Verdict

Football legend O.J. Simpson was accused of murdering his wife, Nicole Brown Simpson, and her companion Ronald L. Goldman, on the evening of June 12, 1994. In a much-publicized criminal trial in 1995, the jury found Simpson not guilty of the two murders.

Ronald Goldman’s family filed a wrongful death lawsuit against Simpson in California Superior Court.

Despite Simpson’s acquittal in criminal court, on February 5, 1997, a civil jury unanimously found Simpson liable for the wrongful death and battery of Ron Goldman and battery against Nicole Simpson.

Simpson was ordered to pay $33,500,000 in damages.

In a criminal trial, the jury is required to find the defendant guilty “beyond a reasonable doubt.” This is a higher standard than in a civil trial.

In a wrongful death trial, the defendant can be found liable based on a “preponderance of the evidence,” meaning the death was more likely than not caused by the defendant.

Start Gathering Evidence and Information

Try to preserve important evidence and information you’ll need to establish a wrongful death action.

Evidence you can collect on your own includes:

  • Death Certificate: The funeral home will be able to provide you with several copies of the death certificate.
  • Personal Effects: Keep everything related to the victim’s death, even damaged clothing. Don’t launder or repair damaged items. Put them in a clean zip-top bag or plastic storage container, labeled with the date and a description of the contents.
  • Police Report: If the victim died from fatal car accident injuries, request a copy of the final Motor Vehicle Crash report.
  • Defective Products: Try to preserve items that may have contributed to the victim’s death, in the condition they were in at the time of the accident.
  • Bills and Receipts: Save all medical bills and receipts related to medical treatment the victim received prior to death, funeral expenses, burial expenses, and receipts for any other costs.

Types of evidence your personal injury lawyer can obtain include:

  • Witness accounts of the incident linking the defendant to the wrongful death. Independent witness testimony can be compelling evidence at trial.
  • Medical records are important to many kinds of wrongful death cases and may include the victim’s medical records as well as the defendant’s medical records.
  • Expert testimony might be provided by accident reconstruction, mechanical engineers and similar specialists for product liability cases, medical experts, and more.
  • Corporate records can reveal a company’s quality control practices, materials used in products, testing that may have revealed defects in a product, as well as other internal records and communications that can prove negligence.
  • Surveillance films from the location where the fatal injuries occurred, or nearby locations that help verify the chain of events.
Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>