How Comparative Fault Affects Wrongful Death Awards in Arizona

TL;DR

In Arizona, a “pure comparative fault” system means a wrongful death award is reduced by the percentage of fault assigned to the deceased person (the decedent). Even if the decedent is found 99% responsible for the incident that caused their death, their surviving family members can still recover 1% of the total damages from the at-fault party. The final compensation paid to statutory beneficiaries, such as a spouse or children, is directly proportional to the defendant’s share of responsibility.

Key Highlights

Proportional Reduction: Your final award is the total determined damages minus the decedent’s percentage of fault.
No Bar to Recovery: Unlike some states, being partially at fault does not prevent your family from receiving compensation in Arizona.
Applies to All Damages: The fault reduction is applied to both economic losses (like lost income) and non-economic losses (like loss of companionship).
Jury Decides Fault: A jury listens to all evidence and assigns a percentage of fault to every party involved, including the decedent and any non-parties.

The Financial Realities of a Wrongful Death Claim

Losing a loved one is a profound and personal tragedy. When that loss is caused by another’s negligence, the emotional toll is compounded by sudden financial instability. In Arizona, families face these challenges frequently. According to the Arizona Department of Transportation, there were 1,294 traffic-related fatalities in 2022 alone, many of which form the basis of wrongful death claims. These claims are not about placing a monetary value on a life; they are a legal mechanism designed to provide financial support for the surviving family members who depended on the deceased for economic and emotional stability.

The legal framework governing these claims in Arizona is specific and detailed. The state’s wrongful death statute, found in the Arizona Revised Statutes (A.R.S. § 12-611 et seq.), outlines who can file a claim—typically a surviving spouse, child, or parent—and what kind of damages can be sought. These damages are meant to compensate for tangible losses like lost future income and intangible losses like the sorrow and loss of companionship experienced by the survivors. However, a critical legal doctrine often becomes the central point of contention in these cases: comparative fault.

Understanding how Arizona law handles shared responsibility is essential for any family considering a wrongful death action. The state operates under a system of “pure comparative fault,” as defined in A.R.S. § 12-2505. This rule dictates how a jury must assign responsibility and how that assignment directly impacts the final financial award. It means that the defendant will almost certainly try to prove that your loved one was partially to blame for the incident. The success of that argument can significantly alter the compensation your family receives, making it a pivotal factor in the entire legal process.

1. Understanding Arizona’s Pure Comparative Fault System (A.R.S. § 12-2505)

At the heart of any personal injury or wrongful death case in Arizona is the concept of fault. Who was responsible, and to what degree? Arizona law answers this question with a legal doctrine known as “pure comparative fault.” This system is one of the most plaintiff-friendly approaches in the country, but it requires a clear understanding to see how it truly functions.

What Does “Pure Comparative Fault” Mean?

The term “pure” signifies that a plaintiff (the family filing the wrongful death claim) can recover damages regardless of how much fault is assigned to their deceased loved one. Even if a jury determines the decedent was 99% at fault for the incident, the family is still legally entitled to recover 1% of the total damages from the defendant who was 1% at fault.

This stands in stark contrast to other systems used in different states:

Modified Comparative Fault (50% Rule): In states with this rule, a plaintiff can only recover damages if their fault is less than 50%. If they are found 50% or more at fault, they receive nothing.
Modified Comparative Fault (51% Rule): This is similar to the 50% rule, but the plaintiff is barred from recovery only if their fault is 51% or greater. They can still recover if found 50% at fault.
Contributory Negligence: This is the harshest system, used by only a few states. If a plaintiff is found even 1% at fault, they are completely barred from recovering any damages.

Arizona’s choice of a pure comparative fault system ensures that a defendant is held accountable for their portion of the blame, no matter how small it may be.

The Law in Practice: A.R.S. § 12-2505

The specific statute governing this principle is A.R.S. § 12-2505. It states that in an action for personal injury, property damage, or wrongful death, the liability of each defendant is several only and not joint. This means each defendant is only responsible for paying their share of the damages, equivalent to their percentage of fault. The court must enter a judgment against each party liable for the amount of damages allocated to that party.

Example Scenario: Imagine a wrongful death case stemming from a car collision. The jury determines the total damages for the surviving family are $2,000,000. This amount includes lost future earnings, loss of companionship, and other compensable losses. However, after hearing all the evidence, the jury finds that the deceased driver was 30% at fault for the crash (perhaps for speeding slightly) and the defendant driver was 70% at fault (for running a red light).

Total Damages: $2,000,000
Decedent’s Fault: 30%
Defendant’s Fault: 70%

Under Arizona’s pure comparative fault rule, the total award is reduced by the decedent’s percentage of fault.

Calculation: $2,000,000 (Total Damages) x 0.30 (Decedent’s Fault) = $600,000 (Reduction)
Final Award: $2,000,000 – $600,000 = $1,400,000

The family would receive $1,400,000 from the defendant. This calculation demonstrates the direct and powerful effect of a comparative fault finding.

2. Who Can Be Assigned Fault in a Wrongful Death Case?

When a wrongful death lawsuit is filed, the defense attorney’s primary goal is often to minimize their client’s financial liability. The most effective way to do this is by shifting blame. Under Arizona’s comparative fault system, a jury can assign a percentage of fault to multiple parties, and this isn’t limited to just the plaintiff and defendant in the courtroom.

The Decedent (The Deceased Person)

The most common target for blame-shifting is the person who passed away. The defense will scrutinize the decedent’s actions leading up to the fatal incident. They will look for any evidence, no matter how minor, to suggest the decedent contributed to their own death.

Common arguments used to assign fault to a decedent include:

In a Car Accident: Speeding, texting while driving, not wearing a seatbelt, or being under the influence of alcohol or drugs.
In a Medical Malpractice Case: Failing to follow a doctor’s instructions, not disclosing their full medical history, or waiting too long to seek treatment.
In a Premises Liability Case (e.g., a slip and fall): Being distracted (e.g., looking at a phone), wearing inappropriate footwear for the conditions, or being in an area where they were not supposed to be.

Any percentage of fault assigned to the decedent directly reduces the award for the surviving family members.

The Defendant(s)

Of course, the person or entity being sued (the defendant) is the primary party alleged to be at fault. In a wrongful death claim, there can be one or more defendants. For example, in a commercial trucking accident, the defendants might include:

The truck driver.
The trucking company (for negligent hiring or maintenance).
The manufacturer of a faulty truck part.
The company that loaded the cargo improperly.

The jury will be asked to assign a separate percentage of fault to each defendant found to be a cause of the death. If Defendant A is 60% at fault and Defendant B is 20% at fault (with the decedent being 20% at fault), then Defendant A is responsible for 60% of the damages and Defendant B is responsible for 20%.

Non-Parties at Fault (The “Empty Chair” Defense)

One of the most complex aspects of Arizona’s fault system is the ability to assign blame to a person or entity who is not even part of the lawsuit. This is often called the “empty chair” defense. The defendant’s attorney argues that a third party, who is not present in court, is the one truly responsible for the death.

Examples of a non-party at fault include:

A “phantom driver” who cut off the defendant, causing them to collide with the decedent.
A government entity responsible for a poorly designed road or a malfunctioning traffic signal.
A bar or restaurant that over-served alcohol to the defendant driver (a “dram shop” claim).

If the jury is convinced by this argument, they can assign a percentage of fault to this non-party. This is highly advantageous for the defendant because any fault assigned to the “empty chair” reduces the defendant’s own share of liability. For instance, if a jury finds a non-party 40% at fault, the defendant’s financial responsibility is immediately cut by that amount. This makes it crucial for the plaintiff’s attorney to anticipate and counter such arguments.

3. The Jury’s Role: How Fault is Calculated and Apportioned

The process of assigning fault is not arbitrary. It is a methodical procedure undertaken by the jury (or a judge in a bench trial) based on the evidence and legal instructions provided during the trial. The jury acts as the “trier of fact,” and their primary job is to weigh the evidence and decide what happened and who is responsible.

The Presentation of Evidence

Both the plaintiff’s and defendant’s attorneys present their cases to the jury. The goal is to construct a narrative that persuades the jury to adopt their view of how the incident occurred and who was at fault. The evidence used to prove or disprove fault can take many forms:

Eyewitness Testimony: Statements from people who saw the incident occur.
Expert Witness Testimony: Opinions from specialists hired to analyze the evidence. Common experts in wrongful death cases include:
- Accident Reconstructionists: They analyze physical evidence from a crash scene (skid marks, vehicle damage) to determine speed, direction, and sequence of events.
- Medical Experts: They testify about the cause of death and whether medical malpractice occurred.
- Engineers: They may testify about a defective product or a hazardous road design.
Physical Evidence: This includes the vehicles involved in a crash, a defective product, or photographs of the scene.
Documents: Police reports, medical records, internal company memos, and maintenance logs can all serve as powerful evidence of fault.

The defense arizona wrongful death attorney will use this same process to introduce evidence suggesting the decedent or a non-party was at fault. For example, they might present the decedent’s cell phone records to show they were texting at the time of a crash or call a toxicologist to testify about the decedent’s blood alcohol content.

Jury Instructions and Deliberation

After all the evidence has been presented, the judge provides the jury with a set of legal instructions. These instructions explain the relevant laws, including Arizona’s pure comparative fault rule. The jury is then given a verdict form, which breaks down the decision-making process into a series of questions.

A typical verdict form in a wrongful death case will ask the jury to determine:

Was the defendant negligent? (If the answer is no, the case is over, and the plaintiff receives nothing).
Was the defendant’s negligence a cause of the decedent’s death? (Again, if no, the case is over).
What is the total amount of damages sustained by the surviving family members? (The jury determines a single dollar amount for all losses).
Was the decedent also negligent?
Was the decedent’s negligence a cause of their own death?
Was a non-party negligent?
Was the non-party’s negligence a cause of the death?
Assuming 100% total fault, what percentage of fault do you assign to each of the following?
- The Defendant: ______%
- The Decedent: ______%
- The Non-Party: ______%
- Total: Must equal 100%

The jury then retires to a private room to deliberate. They discuss the evidence, debate the facts, and work together to answer the questions on the verdict form. Once they reach a unanimous decision, they return to the courtroom, and the verdict is read. The judge then performs the final calculation, reducing the total damages by the percentage of fault assigned to the decedent.

4. Impact on Economic vs. Non-Economic Damages

When a jury decides on a total damages amount in a wrongful death case, that figure is composed of several different types of compensation. These are broadly categorized as economic damages and non-economic damages. It is important to recognize that the comparative fault reduction is applied to the total award, meaning it diminishes both categories of damages proportionally.

Economic Damages: The Tangible Financial Losses

Economic damages are the measurable, out-of-pocket financial losses that the family has incurred and will incur due to their loved one’s death. These are calculated using documents like pay stubs, tax returns, bills, and expert financial projections.

Common types of economic damages in an Arizona wrongful death claim include:

Lost Income and Earning Capacity: This is often the largest component of economic damages. It represents the wages, benefits, and other earnings the decedent would have provided for their family over the remainder of their expected working life. An economist is typically hired to calculate this figure, factoring in inflation and potential career advancement.
Loss of Household Services: This compensates the family for the value of the tasks the decedent performed, such as childcare, home maintenance, cooking, and financial management.
Medical Expenses: The family can recover the cost of any medical care the decedent received for their injuries between the time of the incident and their death.
Funeral and Burial Expenses: The reasonable costs associated with the decedent’s funeral and burial are recoverable.

If the total economic damages are calculated to be $1.5 million and the decedent is found 20% at fault, the family will lose $300,000 of that compensation.

Non-Economic Damages: The Intangible Human Losses

Non-economic damages compensate the statutory beneficiaries for the profound, personal, and emotional losses they have suffered. These losses do not have a precise price tag, and it is up to the jury to determine a fair and reasonable amount based on the evidence of the family’s relationships.

Types of non-economic damages include:

Sorrow, Grief, and Mental Anguish: This acknowledges the deep emotional suffering of the survivors.
Loss of Love, Care, and Companionship: This compensates for the loss of the unique relationship each family member had with the decedent. For a spouse, it is the loss of their partner and confidant. For a child, it is the loss of a parent’s guidance and affection.
Loss of Consortium: This is a specific claim, usually by a surviving spouse, for the loss of intimacy, society, and affection in the marital relationship.

Let’s say a jury awards $1 million in non-economic damages for the family’s grief and loss of companionship. If the decedent is found 20% at fault, this award is also reduced by 20%, resulting in a loss of $200,000.

The Combined Impact

Using our example, let’s combine the damages:

Total Economic Damages: $1,500,000
Total Non-Economic Damages: $1,000,000
Total Jury Award: $2,500,000

With a 20% fault finding against the decedent:

Total Reduction: $2,500,000 x 0.20 = $500,000
Final Judgment: $2,500,000 – $500,000 = $2,000,000

The comparative fault finding reduces every aspect of the family’s compensation, from the money needed to pay the mortgage to the compensation for their profound grief. This is why defending against allegations of fault is a central battle in any wrongful death lawsuit.

5. The “Empty Chair” Defense: Blaming a Non-Party

A sophisticated and often effective strategy used by defendants in Arizona wrongful death cases is the “empty chair” defense. This tactic involves pointing the finger at a person, company, or government entity that is not part of the lawsuit and claiming they are partially or entirely to blame for the death. By doing so, the defendant hopes to convince the jury to assign a percentage of fault to this absent party, thereby reducing their own financial responsibility.

How the “Empty Chair” Defense Works

Under Arizona law (specifically A.R.S. § 12-2506(B)), a defendant can formally name a “non-party at fault.” To do this, they must file a notice with the court identifying the non-party and providing facts that support the allegation of fault. This must be done early in the litigation process. Once a non-party is properly named, the jury can consider their role in the incident and assign them a percentage of fault on the final verdict form.

The power of this defense lies in its ability to dilute the defendant’s liability. Because Arizona has abolished joint and several liability in most cases, each party is only responsible for their own share of the fault.

Scenario: A family files a wrongful death lawsuit against a driver who ran a stop sign and caused a fatal collision. The total damages are determined to be $1 million.

Without the “Empty Chair” Defense: The jury might find the defendant driver 80% at fault and the decedent 20% at fault (for being slightly over the speed limit). The defendant would be responsible for paying $800,000.
With the “Empty Chair” Defense: The defendant’s attorney argues that the stop sign was obscured by an overgrown tree that the city was responsible for maintaining. They name the City as a non-party at fault. The jury might now apportion fault as follows:
- Defendant Driver: 50%
- The City (Non-Party): 30%
- The Decedent: 20%

In this scenario, the defendant driver is now only responsible for 50% of the damages, or $500,000. The 30% of fault ($300,000) assigned to the City simply disappears from what the defendant has to pay. The family would have to file a separate lawsuit against the City to try and recover that portion, which involves its own set of legal hurdles and deadlines (Notice of Claim requirements).

Common Targets for the “Empty Chair” Defense

Defendants may try to blame a wide range of non-parties, including:

Other Drivers: A “phantom vehicle” that allegedly caused the defendant to swerve.
Government Entities: For poor road design, lack of signage, or malfunctioning traffic lights.
Employers: If the decedent was on the job, the defendant might blame the employer for inadequate training or safety equipment (though workers’ compensation laws can complicate this).
Property Owners: For creating a hazardous condition that contributed to the incident.
Doctors or Hospitals: In an accident case, a defendant might argue that medical malpractice in the emergency room was the true cause of death, not the initial injury.

Countering this defense requires a proactive and thorough investigation by the plaintiff’s legal team to prove that the named non-party was not at fault or to gather evidence to use against them in a separate action if necessary.

6. Strategic Considerations for Plaintiffs and Legal Counsel

Given that a comparative fault defense is almost guaranteed in an Arizona wrongful death case, the family’s legal team must build a strategy from day one to minimize any fault attributed to the decedent and maximize the fault assigned to the responsible parties. This involves a combination of deep investigation, expert collaboration, and skilled courtroom advocacy.

Immediate and Thorough Investigation

The most critical phase for countering a comparative fault defense happens long before a trial begins. A proactive investigation is key.

Preserving Evidence: This includes taking photographs and videos of the scene, securing the vehicles or products involved, and obtaining physical evidence before it is lost or repaired.
Identifying Witnesses: Locating and interviewing everyone who may have seen or heard something relevant. Their memories are sharpest immediately following an incident.
Gathering Documents: Collecting all relevant records, such as police reports, 911 call transcripts, medical charts, vehicle maintenance logs, and employee files. These documents can often contain crucial details that disprove a defendant’s claims.

Leveraging Expert Witnesses

Expert witnesses are indispensable for explaining complex technical issues to a jury and refuting the defense’s arguments. A skilled attorney will retain the right experts for the case.

Accident Reconstructionist: Can create detailed animations and reports to show exactly how a collision occurred, often proving the defendant’s version of events is physically impossible.
Human Factors Expert: Can testify about perception-reaction times, driver distraction, and why the decedent may not have been able to avoid the collision, even if they were acting reasonably.
Medical Examiner/Coroner: Can provide definitive testimony on the cause of death, countering defense claims that some other condition was the true cause.
Industry-Specific Experts: In cases involving trucking, construction, or medical care, an expert from that field can explain the standard of care and how the defendant violated it.

Anticipating and Disarming Defense Tactics

An experienced wrongful death attorney knows the arguments the defense will make and prepares to dismantle them.

Addressing “Blame the Victim” Arguments: If the defense claims the decedent was speeding, the attorney can use expert analysis to show the speed was not a contributing factor to the collision. If they claim the decedent wasn’t wearing a seatbelt, the attorney can present evidence that the death would have occurred even with a seatbelt due to the severity of the impact.
Filing Motions to Exclude Improper Evidence: The defense may try to introduce irrelevant and prejudicial information about the decedent’s character or past to sway the jury. A good lawyer will file motions in limine to prevent the jury from ever hearing this improper evidence.
Conducting In-Depth Depositions: During a deposition (a formal, pre-trial interview under oath), the plaintiff’s attorney will question the defendant and their witnesses. This is an opportunity to lock them into a story, expose inconsistencies, and gather admissions of fault that can be used at trial.

By meticulously building a case that not only proves the defendant’s negligence but also actively disproves the decedent’s alleged fault, a legal team can protect a family’s right to full and fair compensation.

Securing Your Family’s Financial Future

The principles of pure comparative fault are woven into the fabric of every wrongful death claim in Arizona. While this system ensures that a family is not completely barred from recovery if their loved one was partially responsible, it also creates a legal battleground where every percentage point of fault is fiercely contested. The defendant’s goal is simple: to shift as much blame as possible onto the decedent or a non-party to reduce the amount they have to pay. This directly impacts the financial stability of the surviving spouse, children, and parents who are left to cope with the loss.

Understanding how fault is investigated, argued, and ultimately decided by a jury is critical. The process involves a detailed analysis of evidence, the strategic use of expert witnesses, and a deep knowledge of legal procedure. From proving a defendant’s negligence to dismantling the “empty chair” defense, every step is aimed at ensuring the final allocation of responsibility is just and accurate. The difference between a 10% and a 40% finding of fault against a decedent can mean a difference of hundreds of thousands or even millions of dollars for a family facing an uncertain future. This is money needed to replace lost income, pay for counseling, and fund a child’s education.

If your family is grappling with the loss of a loved one due to someone else’s actions, you cannot afford to face this complex legal landscape alone. The stakes are too high, and the defense strategies are too sophisticated. You need an advocate who can protect your rights and fight to hold the responsible parties fully accountable. Taking prompt action to consult with a legal professional who specializes in Arizona wrongful death cases is the most important step you can take to secure the justice and financial support your family deserves. Contact us for free consultation today.