Defenses To Wrongful Death Actions

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There are typically three players in a wrongful death lawsuit: the decedent, or person who wrongfully died; the beneficiaries, or person(s) who have legal standing to bring the claim; and the defendant, or person(s) the beneficiaries seek to recover from.  A wrongful death lawsuit is based on the beneficiary's right to take up the personal injury action available to the decedent if the decedent had not died. Therefore, most, if not all, defenses available in a personal injury action are available in wrongful death suits. 

What Are Some Possible Defenses to Wrongful Death Actions?

The availability of each defense will depend on the circumstances of the case and the laws of the state with which the wrongful death occurred. Below, however, are some of the possible defenses made available to a defendant.


Self-defense is only available if the defendant had reasonable grounds to believe that loss of life or great bodily harm was imminent. Even if there was a subjective belief of immediate death or serious injury, the belief must have been reasonable in order to assert self-defense. 

Release Agreement

A defendant may point to a release agreement as a defense to a wrongful death lawsuit. Note, that although a release agreement may bar the defendant from being sued for simple negligence in a wrongful death suit, the agreement does not protect the defendant in gross negligence claims.

Decedent's Involvement In An Unlawful Act

If the decedent was participating in an unlawful act when he died, then the beneficiaries will not be able to recover. This is based on the theory that society does not want to reward unlawful acts.

Assumption Of Risk

Where the defense is allowed, a defendant may assert that the decedent assumed the risk of their conduct. An assumption of risk requires that the decedent knew of the dangers invovled and proceeded anyways. 

Contributory Negligence

The defendant may claim contibutory negligence if the decedent contributed to his death. Contributory negligence will prevent the beneficiaries from recovering anything under a wrongful death suit. This is typically the case unless the the defendant's action were willful, intentional, wanton, or malicious.

Comparative Negligence

If the state has not adopted a contributory negligence theory, then the defendant may assert comparative negligence. Comparative negligence will reduce the damages to a percentage amount related to the responsibility for the death of the decedent.

Will I Need An Attorney In My Wrongful Death LawSuit?

Whether you are the plaintiff or defendant in a wrongful death suit, it is important to have an attorney to assist you in breaking down the legal theories associated with wrongful death defenses. Thus, seeking out a personal injury attorney will assure that the proper remedy is allotted.

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Last Modified: 01-18-2013 04:10 PM PST

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