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 the Elements of a Wrongful Death Action?

In a wrongful death lawsuit, the survivors bring a claim that the victim's death was a result of the defendant's conduct. In order to prevail on a wrongful death claim, the survivors must show:

  • That the victims death was caused by the defendant 
  • The defendant intentionally, recklessly or negligently caused the victim's death, or that the defendant was strictly liable for the victim's death 
  • There are surviving beneficiaries or dependents 
  • The victim's death has caused monetary damages to the surviving beneficiaries or dependents

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 are some of the possible defenses made available to a defendant:

  1. Causation, Cause in Fact and Proximate: In order to hold a defendant liable for a wrongful death, the plaintiff must prove that the defendant's conduct was the actual cause of the decedent's death. The cause does not have to be direct, but there has to be some link from the defendant's conduct to cause the death. The defendant will not be held liable for a wrongful death action if there is no causal connection.
  2. Self-Defense: 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. 
  3. 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.
  4. 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.
  5. 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 involved and proceeded anyways. 
  6. Contributory Negligence: The defendant may claim contributory 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 defendant's action were willful, intentional, wanton, or malicious.
  7. 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. If the decedent was found 50% at fault for his or her own death, their damages awarded will be reduced by 50%.
  8. Statute of Limitation: One of the most common defenses to a wrongful death action is that the time limit for bringing the wrongful death lawsuit has expired. This means that the proper party did not file the lawsuit within the allowed time period. Once this time period expires with no suit filed with the court, any right to recover is lost forever. There must be a causal connection between the injury and the death in order for a defendant to be found liable for wrongful death.
  9. No Negligence: There must be a causal connection between the injury and the death in order for a defendant to be found liable for wrongful death.

Will I Need an Attorney in My Wrongful Death Action?

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. Seeking out a personal injury attorney will assure that the proper remedy is allotted.