How to Determine Whether Comparative Fault Applies in Your Wrongful Death Case

TL;DR

Comparative fault applies to a wrongful death case when the person who passed away (the decedent) is found to share some of the blame for the incident that led to their death. State laws dictate how this shared responsibility impacts the financial compensation the surviving family can receive. If the decedent’s percentage of fault is below a specific legal limit (usually 50% or 51%), their family can still recover money, but the total award will be reduced proportionally by the decedent’s share of the blame. If their fault exceeds the state’s threshold, the family may be prevented from recovering any compensation at all.

Key Highlights

• Comparative fault is a legal principle that assigns a percentage of blame to each party involved in an incident, including the decedent in a wrongful death claim.
• The specific rule your case falls under depends on your state: pure comparative fault, modified comparative fault (50% rule), or modified comparative fault (51% rule).
• Evidence such as police reports, witness statements, video footage, and expert analysis is used to determine each party’s percentage of fault.
• Any percentage of fault assigned to the decedent will directly reduce the total financial award the family receives.
• In most states, if the decedent is found to be 50% or more at fault, their family may be barred from receiving any damages.

The loss of a family member is a profound and life-altering event. When that loss is caused by the carelessness or wrongful act of another person or entity, families have the right to seek justice through a wrongful death claim. According to the Centers for Disease Control and Prevention (CDC), unintentional injuries are a leading cause of death in the United States, with tens of thousands of families facing this reality each year from events like motor vehicle collisions, medical errors, and workplace incidents. These claims are not just about financial compensation; they are about holding the responsible parties accountable for their actions.

In any wrongful death action, the central legal issue is liability. The family, through their legal representative, must prove that the defendant’s negligence or intentional act was the direct cause of their loved one’s death. However, establishing liability is rarely a simple matter of pointing a finger. Defense attorneys and insurance companies almost always scrutinize the actions of the deceased person, looking for any behavior that may have contributed to the fatal event. This legal strategy is rooted in the doctrine of comparative fault, a principle that exists in nearly every state to allocate responsibility among all involved parties.

Understanding how comparative fault works is absolutely critical for any family considering a wrongful death lawsuit. This legal concept directly influences whether a claim is viable and, if it is, the amount of financial recovery the family can expect. It is the primary tool used by defendants to reduce their financial exposure or defeat the claim entirely. By examining the decedent’s conduct, the defense attempts to shift blame, arguing that the deceased was partially, or even primarily, responsible for their own demise. This analysis moves beyond a simple “who caused it” question and into a detailed breakdown of shared responsibility.

Understanding the Core Concepts: Negligence and Wrongful Death

Before we can analyze how fault is divided, it is essential to understand the legal foundation of a wrongful death case. These claims are built upon the principles of negligence, which provide a framework for proving that one party’s failure to act with reasonable care caused harm to another.

What Constitutes a Wrongful Death Claim?

A wrongful death claim is a specific type of civil lawsuit brought by the survivors or the estate of a person whose death was caused by the “wrongful act, neglect, or default” of another. Essentially, if the deceased person could have filed a personal injury lawsuit had they survived, their family can likely file a wrongful death claim.

To succeed, the plaintiffs (the family members or estate representative) must prove four key elements:

1. Duty of Care: The defendant owed the deceased person a legal duty to act with a certain level of care. For example, all drivers have a duty to operate their vehicles safely and obey traffic laws. A doctor has a duty to provide medical care that meets the accepted standard in their field.
2. Breach of Duty: The defendant violated or “breached” that duty of care. A driver who runs a red light or a surgeon who operates on the wrong body part has breached their duty.
3. Causation: The defendant’s breach of duty was the direct and proximate cause of the person’s death. The family must show a clear link between the defendant’s wrongful act and the fatal injury.
4. Damages: The death resulted in quantifiable damages. These include financial losses like lost income and medical bills, as well as non-economic losses like the loss of companionship and emotional suffering.

Wrongful death can arise from countless situations, including car and truck accidents, medical malpractice, defective products, unsafe property conditions, and workplace accidents.

The Role of Negligence

Negligence is the legal concept at the heart of most wrongful death cases. It does not require proving that the defendant intended to cause harm, only that they failed to act with reasonable care, and this failure resulted in death. The standard used to measure this is the “reasonable person” standard. The court asks: How would a reasonably prudent person have acted in the same or similar circumstances?

For instance, a reasonable driver would not send text messages while driving on the highway. A reasonable property owner would clean up a large spill in a store aisle to prevent falls. When a person’s conduct falls below this standard, they are considered negligent. In a wrongful death case, the family’s attorney must present evidence to convince a jury that the defendant acted negligently and that this negligence led to their loved one’s death. This sets the stage for the defense to argue that the decedent was also negligent.

The Three Types of Comparative Fault Rules Explained

The concept of sharing blame has evolved over time. The old, much harsher rule was called “contributory negligence,” where if the injured person was found to be even 1% at fault, they were completely barred from recovering any money. Recognizing the unfairness of this all-or-nothing system, nearly every state has adopted some form of comparative fault.

However, states apply this doctrine differently. The specific rule used in your state will have a major impact on your case.

Pure Comparative Fault

In states that follow the pure comparative fault rule, a plaintiff can recover damages regardless of how much they were at fault. Even if a jury finds the decedent was 99% responsible for the incident, their family can still recover 1% of the total damages.

• Example: A jury determines the total damages in a wrongful death case are $1 million. They find the decedent was 70% at fault for the accident, and the defendant was 30% at fault. Under pure comparative fault, the family would receive $300,000 ($1 million minus their 70% share of fault).
• States: Jurisdictions like California, Florida, New York, and Arizona use this system.

Modified Comparative Fault (50% Rule)

This rule, sometimes called the “Georgia rule,” sets a stricter threshold. Under this system, a plaintiff can only recover damages if their percentage of fault is less than 50%. If their fault is determined to be 50% or greater, they are completely barred from recovering anything.

• Example: A jury finds the total damages are $1 million. They determine the decedent was 49% at fault. The family can recover $510,000 ($1 million minus 49%). However, if the jury decided the decedent was 50% at fault, the family would receive $0.
• States: States including Georgia, Tennessee, and Arkansas follow this rule.

Modified Comparative Fault (51% Rule)

This is the most common system used in the United States. It allows a plaintiff to recover damages as long as their fault is not greater than the defendant’s. In other words, they can be up to 50% at fault and still recover. If their fault reaches 51% or more, they are barred from recovery.

• Example: Using the same $1 million damage award, if a jury finds the decedent was 50% at fault, the family can still recover $500,000 ($1 million minus 50%). But if the fault is assigned at 51%, the family receives nothing.
• States: A majority of states, including Texas, Illinois, Pennsylvania, and Ohio, use the 51% rule.

What About Contributory Negligence?

A very small handful of jurisdictions still adhere to the old contributory negligence doctrine. In these places, if the decedent is found to have contributed to the fatal incident in any way, even just 1%, their family is barred from recovering any damages. This rule is extremely harsh and makes winning a wrongful death case much more difficult.

• Jurisdictions: Alabama, Maryland, North Carolina, Virginia, and the District of Columbia still follow this rule.

How is Fault Assigned in a Wrongful Death Case?

Assigning a percentage of fault is not an exact science. It is a determination of fact made by the “trier of fact,” which is usually a jury in a trial. During settlement negotiations, it is a point of contention between the family’s attorney and the insurance adjuster. The final percentage is based on the strength of the evidence presented by both sides.

The Investigation and Evidence Gathering Process

Both the plaintiff’s attorney and the defense team will conduct exhaustive investigations to find evidence that supports their arguments about liability. The goal is to piece together exactly how the incident occurred and what each person was doing in the moments leading up to it.

Key pieces of evidence used to assign fault include:

• Official Reports: Police reports, accident reports from government agencies (like the NTSB for aviation incidents), and reports from OSHA for workplace fatalities provide an initial assessment of the event.
• Witness Testimony: Statements from eyewitnesses who saw the incident, as well as testimony from first responders, can be very persuasive.
• Physical Evidence: This includes everything from vehicle damage and skid marks on the road to a broken handrail on a staircase.
• Visual Evidence: Photographs and videos from the scene are invaluable. This can include surveillance camera footage, dashcam recordings, or cell phone videos taken by bystanders.
• Expert Witness Analysis: In complex cases, experts are often hired to reconstruct the event. An accident reconstructionist can analyze data to determine vehicle speeds, while a medical expert can testify about whether a doctor’s actions deviated from the standard of care.
• Records and Documents: Medical records, autopsy reports, cell phone records (to check for distracted driving), and maintenance logs can all contain crucial information.

Common Scenarios Where Decedent Fault is Argued

Defense attorneys are skilled at finding ways to argue that the deceased person shared some of the blame. Here are some common examples across different types of cases:

• Motor Vehicle Accidents: The defense might claim the decedent was speeding, not wearing a seatbelt, texting while driving, intoxicated, or made an improper lane change.
• Medical Malpractice: An argument could be made that the patient contributed to their own death by not following the doctor’s instructions, failing to show up for follow-up appointments, or not disclosing their full medical history or lifestyle habits (like smoking).
• Premises Liability (e.g., a fatal fall): The property owner might argue the decedent was in a restricted area, ignored clear warning signs (“Wet Floor”), was wearing inappropriate footwear for the conditions, or was not paying attention to where they were going.
• Workplace Accidents: An employer could claim the deceased employee was not using company-provided safety equipment, was violating established safety protocols, or was engaged in horseplay at the time of the incident.

The Impact of Comparative Fault on Your Financial Recovery

The percentage of fault assigned to the decedent has a direct and mathematical impact on the amount of money the family can recover. This reduction applies to the total amount of damages awarded by the jury.

Calculating the Reduction in Damages

The calculation is straightforward. The total damages are determined first, and then that amount is reduced by the decedent’s percentage of fault.

Let’s walk through a clear example:

1. Case: A family files a wrongful death lawsuit after their loved one was killed in a construction site accident.
2. Total Damages: After a trial, the jury decides the full value of the family’s losses (lost income, loss of companionship, etc.) is $2,500,000.
3. Fault Apportionment: The jury listens to all the evidence. The defense argued the decedent was not wearing his safety harness properly. The jury agrees this contributed to the fall and assigns 20% of the fault to the decedent. The construction company is found to be 80% at fault for maintaining an unsafe work environment.
4. Reduction Calculation: The total damages are reduced by the decedent’s fault: $2,500,000 x 20% = $500,000.
5. Final Award: The family receives the remaining amount: $2,500,000 – $500,000 = $2,000,000.

This example assumes the case is in a state with a pure or modified (51% rule) comparative fault system. If this were in a 50% rule state and the jury found the decedent 50% at fault, the award would be $0.

Types of Damages Affected by Comparative Fault

The reduction applies to the entire damage award, which typically includes two categories of compensation in a wrongful death claim.

• Economic Damages: These are the tangible, financial losses resulting from the death. They include:
  • Lost wages and benefits the decedent would have earned.
  • Loss of a potential inheritance.
  • Medical expenses incurred between the time of injury and death.
  • Funeral and burial expenses.
• Non-Economic Damages: These are intangible losses that compensate the family for the personal impact of the death. They include:
  • Loss of companionship, love, and society.
  • Sorrow, grief, and mental anguish.
  • Loss of guidance, training, and support.

The comparative fault percentage reduces the grand total of all these damages combined.

How Insurance Companies Use Comparative Fault

Insurance companies are businesses focused on minimizing payouts. The adjuster assigned to your claim will almost certainly use the possibility of comparative fault as a primary negotiation tactic. Even if their evidence of the decedent’s fault is weak, they may assert a high percentage of fault to justify making a very low settlement offer. They know that the risk of a jury assigning some blame to the decedent at trial can pressure a family into accepting a smaller settlement than they deserve. This is why having an experienced attorney who can effectively counter these arguments is so important.

Proving Liability and Countering Comparative Fault Arguments

Successfully handling a wrongful death claim requires a proactive and strategic approach to proving the defendant’s liability while simultaneously defending the decedent’s actions. This is not a task a family should undertake alone.

The Role of a Wrongful Death Attorney

An experienced wrongful death attorney in arizona does much more than just file paperwork. Their primary role is to build the strongest possible case to maximize the family’s recovery. This involves:

• Conducting an Independent Investigation: A skilled attorney will not rely solely on the police report. They will launch their own investigation to uncover evidence that may have been missed.
• Hiring Experts: They have a network of qualified experts, such as accident reconstructionists, engineers, medical professionals, and economists, who can analyze the evidence and provide powerful testimony.
• Preserving Evidence: They will act quickly to preserve crucial evidence before it is lost or destroyed, such as by sending spoliation letters to defendants demanding they save video footage or vehicle data recorders.
• Deposing Witnesses: They will question the defendant and other key witnesses under oath to lock in their testimony and expose inconsistencies.
• Building a Compelling Narrative: They will weave all the evidence together to tell a clear and persuasive story to the insurance company or the jury, one that places the blame squarely on the defendant and minimizes any fault of the decedent.

Case Study: A Disputed Intersection Collision

Imagine a wrongful death case arising from a T-bone collision at an intersection. The defendant driver claims that the decedent ran a red light, making the decedent 100% at fault. The police report is inconclusive, citing conflicting witness statements.

• The Defense’s Argument: The defendant’s insurance company denies the claim, stating they have a witness who will testify the decedent’s light was red. They offer the family nothing.
• The Attorney’s Investigation: The family’s attorney immediately sends an investigator to canvas the area. They discover a nearby convenience store had a security camera pointed toward the intersection. The attorney subpoenas the footage. The video is grainy but appears to show the decedent’s light was yellow, not red, when they entered the intersection. The attorney then hires an accident reconstructionist. By analyzing the vehicle “black box” data, crush damage, and skid marks, the expert determines the defendant was traveling 15 miles per hour over the speed limit and would have had ample time to stop if they had been driving at a safe speed.
• The Outcome: Armed with this powerful evidence, the attorney refutes the defense’s argument. The insurance company, facing the prospect of a jury seeing the video and hearing from the expert, changes its position. The case settles for a substantial amount, with the decedent being assigned only 10% fault for entering the intersection on a yellow light. The family recovers 90% of the full value of their claim.

Special Considerations and Related Legal Doctrines

While comparative fault is the main principle for dividing blame, other legal doctrines can also come into play in a wrongful death case.

Multiple Defendants and Apportionment of Fault

Sometimes, more than one party is responsible for a person’s death. For example, in a multi-car pileup, several drivers might be negligent. In a medical malpractice case, both a doctor and the hospital could be at fault. In these situations, the jury will assign a percentage of fault to each defendant, as well as to the decedent.

How this affects recovery depends on the state’s rules on “joint and several liability.”

• Several Liability: In these states, each defendant is only responsible for paying their share of the damages. If Defendant A is 60% at fault and Defendant B is 40% at fault, the family can only collect 60% from A and 40% from B.
• Joint and Several Liability: This rule is more favorable to plaintiffs. It allows the family to collect the full amount of the award from any single defendant, regardless of their percentage of fault. That defendant would then have to sue the other at-fault parties to get reimbursed. Many states have modified versions of this rule.

The “Seatbelt Defense”

In many states, the defense can introduce evidence that the decedent was not wearing a seatbelt at the time of a car accident. This is not used to prove the decedent caused the crash, but to argue that their failure to wear a seatbelt contributed to the severity of their injuries and their ultimate death. If successful, this can lead to a finding of comparative fault and a reduction in damages.

Assumption of Risk

This is a separate legal defense that can sometimes bar a wrongful death claim entirely. It applies when a person knowingly and voluntarily accepts the inherent dangers of an activity. For example, someone who is injured while skydiving may have a difficult time suing because they understood and accepted the risks. While less common in typical wrongful death cases, it can be raised in situations involving recreational activities or other inherently dangerous situations.

Conclusion

Determining whether comparative fault applies in your wrongful death case is a critical step in understanding the potential challenges and outcomes of your claim. The reality is that in nearly every case, the defendant’s legal team will attempt to shift at least some of the blame onto the person who passed away. The success of this strategy hinges on the specific comparative fault rule in your state—be it pure, modified 50%, or modified 51%—and the strength of the evidence presented by both sides. A finding of shared responsibility will reduce the financial compensation your family receives, and in many states, a finding that your loved one was 50% or more at fault can prevent any recovery at all.

The complexities involved in investigating a fatal incident, gathering evidence, and countering sophisticated defense arguments underscore the necessity of professional legal representation. Insurance companies and corporate defendants have vast resources dedicated to minimizing their liability. Your family deserves an advocate with the experience and resources to level the playing field. An attorney can conduct a thorough, independent investigation to build a powerful case that accurately portrays what happened and holds the truly responsible parties accountable.

If you have lost a family member due to the actions of another, do not let uncertainty about fault stop you from seeking answers. The laws governing these claims are complex, and strict time limits, known as statutes of limitations, apply. Contacting an experienced wrongful death attorney as soon as possible is the most important step you can take. A legal professional can evaluate the facts of your case, explain your rights under your state’s laws, and provide the guidance and support your family needs to pursue the justice you deserve.  Contact us for free consultation today.