Common Defenses in Wrongful Death Lawsuits

TL;DR

Defendants in wrongful death lawsuits often argue that they were not negligent, the deceased was partially or fully at fault (comparative or contributory negligence), the deceased willingly accepted a known risk (assumption of risk), or the lawsuit was filed too late (statute of limitations). Other key defenses include a lack of causation connecting the defendant’s actions to the death, self-defense in cases of intentional acts, and challenging the plaintiff’s legal standing to sue or the calculation of damages.

Key Highlights

Contributory & Comparative Negligence: Argues the deceased’s own actions contributed to their death, potentially reducing or eliminating compensation.
Statute of Limitations: Claims the lawsuit was filed after the strict legal deadline expired, which can lead to a complete dismissal of the case.
Assumption of Risk: Asserts the deceased knowingly and voluntarily accepted the dangers involved in an activity that led to their passing.
Lack of Causation: Contends that the defendant’s actions, even if negligent, were not the direct or legally recognized cause of the death.
Self-Defense: Used in cases of intentional harm, this defense claims the defendant’s actions were necessary to protect themselves from injury or death.
Procedural Defenses: Focuses on legal technicalities, such as the plaintiff not having the legal right to file the claim or failing to follow court rules.

A wrongful death claim is a civil action brought by the surviving family members or the estate of a person whose death was caused by the wrongful act or negligence of another. These lawsuits are entirely separate from any criminal charges the defendant might face. According to the Centers for Disease Control and Prevention (CDC), preventable injuries are a leading cause of death in the United States, with millions of incidents each year resulting in fatalities that could form the basis of such a claim. These cases aim to provide financial compensation for the losses suffered by the survivors, including lost income, loss of companionship, and funeral expenses.

To succeed in a wrongful death lawsuit, the plaintiff (the party filing the suit) must prove four key elements. First, they must establish that the defendant owed the deceased a “duty of care.” Second, they must show the defendant “breached” that duty through a negligent or intentional act. Third, they must prove that this breach was the direct and proximate “cause” of the death. Finally, they must demonstrate that the death resulted in quantifiable “damages” for the surviving family members. State laws, such as specific statutes of limitations that set firm deadlines for filing, govern these claims and create the legal framework within which both sides must operate.

While the plaintiff’s legal team focuses on building a case around these four elements, the defendant and their insurance company are simultaneously constructing a defense strategy designed to dismantle the claim. A strong defense will target one or more of these core elements, introduce external factors, or rely on legal technicalities to avoid liability. Understanding these common defense arguments is essential for surviving family members, as it allows them to anticipate the challenges ahead and work with their legal counsel to prepare a robust and evidence-backed response. The following sections break down the most frequent and effective defenses used in wrongful death litigation.

Challenging the Core Elements: Negligence and Causation

The foundation of any wrongful death claim is proving that the defendant was negligent and that their negligence caused the death. Consequently, the most direct defense strategy is to attack this foundation. A defendant can argue they are not liable because they did nothing wrong, or that even if they did, it wasn’t what led to the fatal outcome.

Arguing No Duty of Care Was Owed

A defendant may claim they had no legal obligation to ensure the safety of the deceased. A duty of care is a legal responsibility to act with a certain level of caution to avoid harming others. While drivers have a duty to other motorists and pedestrians, and doctors have a duty to their patients, this duty is not universal. For example, a property owner generally has a lower duty of care to a trespasser than to an invited guest. If a trespasser is injured on a property due to a hazard the owner was not aware of, the owner might argue they owed no duty to warn the trespasser of unknown dangers.

Denying the Breach of Duty (No Negligence)

This is perhaps the most common defense. The defendant admits they owed a duty of care but insists they did not breach it. They argue that they acted as a “reasonably prudent person” would have under the same circumstances. This defense shifts the focus to the defendant’s actions and whether they met the accepted standard of care.

Medical Malpractice Example: A surgeon whose patient dies during a high-risk operation might argue they followed all standard medical procedures and that the death was an unfortunate but known complication of the surgery, not the result of a mistake.
Car Accident Example: A driver involved in a fatal collision might claim they were obeying all traffic laws and that a sudden, unforeseeable event, like a deer running into the road or an unexpected medical emergency (e.g., a heart attack), caused the crash.

To counter this, the plaintiff must present evidence showing the defendant’s conduct fell below the required standard of care. This often requires expert witness testimony from professionals in the relevant field.

Breaking the Chain of Causation

This defense argues that an unrelated, intervening event was the true cause of death. The defendant may even admit to being negligent but will claim their negligence did not directly lead to the fatality. This is known as an “intervening” or “superseding” cause.

Imagine a scenario where a person is injured in a slip-and-fall accident at a store due to a wet floor. They are taken to the hospital for a broken leg. While recovering, they contract a severe, unrelated infection and pass away. The store’s defense attorney would argue that the infection, not the fall, was the superseding cause of death. They would contend that the death was not a foreseeable consequence of their client’s negligence in failing to clean the floor.

The “Act of God” Defense

An “Act of God” defense is used when the death was caused by a natural event that was both unforeseeable and unpreventable. This defense asserts that no amount of reasonable care could have stopped the incident. Examples include:

A sudden, violent tornado that causes a structure to collapse.
A flash flood that washes a car off the road.
A lightning strike that causes a fatal fire.

However, this defense is not absolute. If the defendant’s negligence contributed to the harm, the defense may fail. For instance, if a building collapsed in a storm because it was not built to code, the defendant cannot simply blame the storm. Their negligence in constructing a weak building would still be a contributing factor.

The Deceased’s Own Conduct: Comparative and Contributory Negligence

One of the most powerful defense strategies involves shifting blame to the deceased. Defense attorneys will meticulously investigate the deceased’s actions leading up to the incident to determine if they were partially or wholly responsible for their own death. States have different rules for how a deceased person’s fault affects a wrongful death claim.

Understanding Contributory Negligence

A handful of jurisdictions (Alabama, Maryland, North Carolina, Virginia, and the District of Columbia) follow the harsh rule of “pure contributory negligence.” Under this doctrine, if the deceased is found to be even 1% at fault for the incident that caused their death, their surviving family members are barred from recovering any compensation.

For example, if a pedestrian was crossing the street outside of a crosswalk (jaywalking) and was struck and killed by a driver who was texting, a jury might find the pedestrian 10% at fault and the driver 90% at fault. In a contributory negligence state, that 10% of fault on the pedestrian’s part would completely prevent their family from winning the lawsuit. Because this rule is so unforgiving, it is a potent defense in the states where it applies.

How Pure Comparative Negligence Works

Most states have moved away from the all-or-nothing approach of contributory negligence. A number of states, including California, Florida, and New York, use a “pure comparative negligence” system. In this system, the plaintiff’s financial recovery is simply reduced by the percentage of fault assigned to the deceased.

Using the same example, if the jaywalking pedestrian was found 10% at fault, their family’s damage award would be reduced by 10%. If the total damages were calculated to be $1 million, they would receive $900,000. Even if the deceased were found to be 99% at fault, their family could still technically recover 1% of the total damages. This system apportions liability more directly based on each party’s level of responsibility.

The Modified Comparative Negligence Rule (50% or 51% Bar)

The most common system in the United States is “modified comparative negligence.” This rule is a hybrid of the other two systems. Under this rule, the plaintiff can recover damages as long as the deceased’s fault is below a certain threshold.

50% Bar Rule: In states like Georgia and Tennessee, the plaintiff can recover damages only if the deceased’s fault was 49% or less. If their fault is 50% or more, they recover nothing.
51% Bar Rule: In states like Texas and Wisconsin, the plaintiff can recover damages as long as the deceased’s fault was not greater than the defendant’s. This means they can recover if their fault is 50% or less. If their fault reaches 51%, they are barred from recovery.

Defense attorneys in these states will work hard to push the deceased’s percentage of fault over the legal threshold, as doing so completely defeats the plaintiff’s claim.

Assumption of Risk: When the Deceased Knew the Dangers

The “assumption of risk” defense argues that the deceased was aware of a particular danger, understood the risks involved, and voluntarily chose to expose themselves to that danger anyway. If successful, this defense can completely bar recovery. There are two main types of assumption of risk.

Express Assumption of Risk

This occurs when a person formally agrees, often in writing, to accept the risks of an activity. The most common example is a liability waiver or release form signed before participating in a recreational activity like skydiving, rock climbing, or attending a motorsport event. The defendant will present this signed document as proof that the deceased legally waived their right to sue for injuries or death.

However, these waivers are not always ironclad. Courts may invalidate them if:

The language in the waiver is unclear or ambiguous.
The waiver attempts to release the defendant from acts of “gross negligence” or reckless misconduct, which goes beyond ordinary carelessness.
The waiver violates public policy.

Implied Assumption of Risk

This type of defense does not rely on a written agreement. Instead, it argues that the risks of an activity were so obvious and inherent that by choosing to participate, the deceased implicitly accepted them. The classic example is the “baseball rule,” where a spectator at a baseball game is considered to have assumed the risk of being hit by a foul ball.

For this defense to apply, the defendant must prove:

The deceased had actual knowledge of the specific risk involved.
They understood and appreciated the magnitude of that risk.
They voluntarily chose to proceed in the face of that risk.

Limitations of the Assumption of Risk Defense

This defense is not a free pass for negligent behavior. It typically only applies to the inherent risks of an activity, not to risks created by the defendant’s negligence. For example, a person who goes skiing assumes the inherent risk of falling on an icy patch. However, they do not assume the risk of being hit by a negligent ski lift operator or falling into an unmarked ravine that the ski resort should have roped off. In such cases, the defendant’s negligence created a new and separate danger that the skier did not consent to.

Procedural and Technical Defenses: Winning on a Technicality

Sometimes, a wrongful death case can be won or lost not on the facts of the incident but on legal rules and procedures. A skilled defense attorney will examine every aspect of the plaintiff’s case for technical errors that could lead to a dismissal.

The Statute of Limitations

Every state has a “statute of limitations,” which is a strict deadline for filing a lawsuit. For wrongful death claims, this deadline is typically two years from the date of death, but it can vary significantly by state and by the type of claim.

Medical Malpractice: The deadline might be shorter or tied to the date the malpractice was discovered.
Claims Against the Government: These often have much shorter deadlines and require filing a formal notice of claim long before a lawsuit can be initiated.

The statute of limitations is an absolute defense. If the plaintiff files the lawsuit even one day late, the defendant can file a motion to dismiss the case, and the court will almost certainly grant it. There are very few exceptions to this rule, making it one of the most critical deadlines in the legal system.

Lack of Standing

State laws are very specific about who is allowed to file a wrongful death lawsuit. Usually, the claim must be brought by the personal representative of the deceased’s estate on behalf of the statutory beneficiaries (like a spouse, children, or parents). If someone other than the legally designated person files the lawsuit, the defendant can argue that the plaintiff lacks “standing” to sue. This can result in the case being dismissed, and if the statute of limitations has run out in the meantime, it may be too late for the correct person to refile.

Improper Service of Process

The law requires that a defendant be formally notified that they are being sued. This is called “service of process” and involves delivering a copy of the complaint and summons according to strict legal rules. If these rules are not followed correctly, the defendant can argue they were never properly served. While this is often a correctable error, it can cause significant delays and may, in some circumstances, lead to a dismissal if not fixed in time.

Governmental or Sovereign Immunity

If the defendant is a government agency or employee, they may be protected by “sovereign immunity.” This legal doctrine historically prevented citizens from suing the government. While most states and the federal government have passed laws (like the Federal Tort Claims Act) that waive this immunity for certain types of negligence, these laws come with a complex set of rules, exceptions, and procedural requirements. Failing to follow these rules precisely can result in the case being barred completely.

Justification Defenses: When the Act Was Legally Permissible

In some wrongful death cases, particularly those arising from intentional acts rather than negligence, the defendant may admit to causing the death but argue that their actions were legally justified under the circumstances.

Self-Defense and Defense of Others

This is a common defense in cases involving a death resulting from a physical altercation. The defendant claims that they used force because they reasonably believed they were in imminent danger of serious bodily harm or death. To be successful, the defense must show:

The defendant had a reasonable fear of imminent harm.
The force they used was necessary to prevent that harm.
The level of force used was proportional to the threat they faced.

For example, if an individual is attacked by an armed assailant and uses deadly force to stop the attack, they can claim self-defense. The same principle applies if they were protecting another person from a similar threat (“defense of others”).

Consent

While less common in wrongful death actions, the defense of consent can arise in specific situations. The most frequent application is in medical malpractice cases. A doctor might argue that the patient consented to a risky medical procedure after being fully informed of all potential outcomes, including the possibility of death. This is known as the “informed consent” doctrine. The defense argues that the patient knowingly accepted the risk, and therefore the doctor should not be held liable for a negative outcome that occurred without negligence.

The “Illegality” or “Unlawful Act” Defense

This defense asserts that the deceased was killed while committing a serious crime, and their own unlawful actions were the cause of their death. The argument is that a person should not be able to profit from their own wrongdoing. For instance, if a person is attempting to commit an armed robbery and is killed by a homeowner defending their property, the homeowner could use the deceased’s illegal act as a defense against a wrongful death claim from the robber’s family.

Mitigating Damages: Reducing the Financial Payout

Even if a defendant cannot avoid liability entirely, their final line of defense is to minimize the amount of money they have to pay. Defense arizona wrongful death attorneys and insurance companies will carefully scrutinize the plaintiff’s damage calculations and present arguments to reduce the final award.

Arguing Pre-Existing Conditions

A defendant may introduce evidence that the deceased had a pre-existing health condition, such as heart disease, cancer, or a chronic illness. The purpose is not to deny liability for the death but to argue that the deceased’s life expectancy was already limited. This argument is used to reduce the damages awarded for future lost income, as the defense will claim the deceased would not have worked for as many years as the plaintiff’s experts project.

Challenging the Calculation of Lost Earnings

Wrongful death damages often include a significant amount for the income the deceased would have earned over their lifetime. Plaintiffs will hire economists to project these future earnings based on the deceased’s age, profession, education, and career trajectory. The defense will hire its own experts to counter these projections. They might argue:

The deceased’s job was unstable or in a declining industry.
The plaintiff’s income projections are overly optimistic.
The deceased may have planned to retire early or change to a lower-paying career.

Questioning the Value of Non-Economic Damages

Non-economic damages compensate the family for intangible losses like loss of companionship, guidance, support, and affection. These are subjective and difficult to quantify. Defense attorneys may try to reduce these damages by questioning the closeness of the family relationships. While a sensitive and often difficult tactic, they may investigate the family’s history to suggest the relationship between the deceased and the beneficiaries was not as strong as claimed, thereby reducing the value of the loss.

Failure to Mitigate (in Survival Actions)

In some cases, a “survival action” is filed alongside the wrongful death claim. This separate action seeks compensation for the deceased’s own pain and suffering between the time of injury and their death. In this context, a defense might argue that the deceased “failed to mitigate” their damages by not seeking prompt or appropriate medical treatment. They might claim that this failure worsened the injury and contributed to the death, which could reduce the compensation awarded for that period of suffering.

Conclusion

The path to resolving a wrongful death claim is rarely straightforward. While plaintiffs focus on proving negligence and demonstrating their losses, defendants have a wide array of legal strategies at their disposal. These defenses range from direct attacks on the core elements of the case, such as negligence and causation, to arguments that shift blame onto the deceased through principles like comparative negligence and assumption of risk. Furthermore, defendants can rely on procedural rules, like the statute of limitations, to have a case dismissed on a technicality before the facts are even considered.

Even when liability seems clear, the battle often continues over the amount of compensation. Defense attorneys will meticulously challenge every aspect of the damages claim, from the deceased’s future earning potential to the value of the family’s loss of companionship. This multi-layered approach to defending a wrongful death lawsuit underscores the legal complexities that families face during an already difficult time.

Successfully countering these defenses requires deep legal knowledge, thorough investigation, and the strategic use of evidence and expert testimony. It is a process of anticipating the defendant’s arguments and proactively building a case that can withstand them. If your family is facing the loss of a loved one due to someone else’s actions, understanding these potential defenses is a critical first step. To protect your rights and determine the best course of action, it is essential to consult with an experienced wrongful death attorney who can provide a comprehensive evaluation of your case and guide you through the legal process. Contact us for free evaluation today.