Reducing Comparative Fault in Wrongful Death Cases

TL;DR

To effectively reduce a comparative fault defense in a wrongful death case, you must act swiftly to gather and preserve critical evidence. This involves documenting the incident scene, securing physical items like vehicles and personal effects, obtaining all official reports (police, medical, autopsy), and identifying every possible witness. The most crucial step is engaging a wrongful death attorney who can immediately issue evidence preservation letters and deploy investigators and experts, such as accident reconstructionists, to build a strong case that clearly establishes the other party’s liability.

Key Highlights

Preserve Physical Evidence: Immediately photograph the scene, vehicles, and any relevant objects. Prevent vehicles or machinery from being repaired or destroyed.
Obtain Official Documents: Collect the police or incident report, 911 transcripts, medical records, and the coroner’s report to establish a factual timeline.
Identify All Witnesses: Speak with anyone who saw the incident and look for less obvious witnesses, like people in nearby buildings or those who arrived shortly after.
Secure Digital Data: Recover data from cell phones, vehicle event data recorders (EDRs), and seek out surveillance footage from traffic cameras or local businesses.
Hire Legal Counsel: An attorney can send spoliation letters to legally obligate the at-fault party to preserve evidence and can hire the necessary experts to analyze it.

When a family loses a loved one due to someone else’s negligence, a wrongful death claim provides a path to hold the responsible party accountable. These legal actions seek compensation for the immense losses suffered by the surviving family members, including lost financial support, loss of companionship, and funeral expenses. In the United States, thousands of these claims are filed each year, stemming from events like car collisions, medical malpractice, and workplace incidents. The financial stakes are significant, as the compensation is meant to provide for a family’s future stability.

The legal framework governing these cases often includes a doctrine known as comparative fault, or comparative negligence. In states like Georgia, which follows a modified comparative fault rule (O.C.G.A. § 51-12-33), this principle can drastically affect the outcome of a case. The rule states that if the deceased person is found to be partially responsible for the incident that led to their death, the family’s compensation will be reduced by that percentage of fault. If the deceased is found to be 50% or more at fault, the family is barred from recovering any compensation at all. This makes the concept of fault a central battleground in wrongful death litigation.

Because of this rule, the primary strategy for defense attorneys and insurance companies is to shift as much blame as possible onto the deceased. They will scrutinize every action your loved one took leading up to the fatal event. This is why a proactive, strategic, and thorough evidence-gathering process is not just a good idea; it is the most critical component of protecting your family’s right to fair compensation. Understanding what evidence to collect, how to preserve it, and how to use it to build a compelling narrative is the key to countering claims of shared blame and securing the justice your family deserves.

Understanding Comparative Fault and Its Impact on Your Claim

Before you can effectively counter a comparative fault defense, you must first understand how it works and why it is so central to wrongful death litigation. Insurance companies and their legal teams are experts at using this legal doctrine to minimize their financial exposure. By assigning even a small percentage of blame to the deceased, they can save their company thousands or even millions of dollars.

What is Comparative Fault?

Comparative fault is a legal principle that divides responsibility among all parties involved in an incident that causes harm. Instead of an all-or-nothing system where one person is 100% at fault, the court or jury assesses the actions of everyone involved and assigns a percentage of blame to each. There are two main types of comparative fault systems used in the United States:

Pure Comparative Fault: In states with this rule, a plaintiff can recover damages even if they are 99% at fault. Their compensation is simply reduced by their percentage of fault. For example, if they are awarded $100,000 but found 90% at fault, they would still receive $10,000.
Modified Comparative Fault: This is the more common system and has two variations. In some states (like Georgia), you are barred from recovery if you are 50% or more at fault. In others, the bar is at 51% fault. This means if your loved one is found even equally to blame, your family may receive nothing.

How a Percentage of Fault Reduces Your Settlement or Verdict

The math is simple but its effect is profound. Imagine a wrongful death case resulting from a car crash where the total damages (lost income, pain and suffering, etc.) are determined to be $2 million.

Scenario 1: 0% Fault: If the defendant is found 100% liable, your family receives the full $2 million.
Scenario 2: 20% Fault: If the defense successfully argues that your loved one was speeding and assigns them 20% of the blame, your award is reduced by 20% ($400,000). Your family would receive $1.6 million.
Scenario 3: 50% Fault: If the jury decides your loved one was 50% at fault for the crash in a state like Georgia, your family receives $0. The entire claim is defeated.

This is why the fight over a few percentage points of fault is so intense. It is the primary tool the defense uses to devalue your claim.

Common Defense Tactics to Establish Fault

Defense attorneys will use any available information to construct a narrative that your loved one contributed to their own death. Some common tactics include:

Blaming the Victim’s Actions: Arguing the deceased was speeding, distracted by their phone, not wearing a seatbelt, or failed to follow safety protocols at work.
Questioning Medical History: Suggesting a pre-existing medical condition contributed to the death, independent of the defendant’s negligence.
Using Social Media: Scouring public social media profiles for photos or posts that suggest a risky lifestyle or contradict claims made in the wrongful death lawsuit.
Misinterpreting Evidence: Twisting the facts from a police report or witness statement to imply fault where none exists.

Your goal in gathering evidence is to build a wall of facts so strong that these tactics cannot succeed. You must be prepared to prove not only what the defendant did wrong but also everything your loved one did right.

The Critical First Steps: Preserving the Scene and Physical Evidence

The moments and days immediately following a fatal incident are the most important for evidence preservation. Evidence can be lost, altered, or destroyed with alarming speed. Taking immediate action to document and secure physical evidence is a foundational step in building a case that can withstand a comparative fault defense.

Securing the Accident Scene

If you are able to get to the scene of the incident safely, your priority is documentation. Use your smartphone to take hundreds of photos and videos from every conceivable angle. Capture wide shots to show the entire area, as well as close-ups of specific details.

Vehicle Positions: Document the final resting positions of all vehicles involved.
Debris Field: Photograph the location of broken glass, car parts, and other debris. This can help an expert reconstruct the points of impact.
Road Conditions: Note any potholes, construction, or lack of proper signage.
Sightlines: Take photos from the perspective of each driver to show what they could or could not see.
Weather and Lighting: Document the conditions at the time of the incident, as fog, rain, or sun glare can be important factors.

Documenting Perishable Evidence

Some of the most valuable evidence is also the most fragile. Skid marks fade, fluid spills are cleaned up, and grass or dirt impressions disappear.

Skid Marks and Tire Tracks: These can show braking patterns, speed, and direction of travel. Take photos with a reference object (like a coin or key) to show scale.
Gouge Marks: Scrapes or gouges in the pavement or on a guardrail can indicate the point of impact or where a vehicle left the roadway.
Bodily Fluids: While grim, the location of blood can be a critical piece of information for reconstruction experts.

The Deceased’s Personal Effects

The items your loved one had with them can contain important clues. Their clothing, for example, might have transfers of paint or fabric from another vehicle. Their cell phone could contain location data or communications that establish a timeline. It is vital that these items are preserved in the state they were in at the time of the incident and not cleaned or altered.

Preserving the Vehicle or Equipment Involved

The single most important piece of physical evidence in a vehicle collision or machinery failure case is the vehicle or equipment itself. The defense will want to inspect it, and so will your experts. You must prevent it from being sold for scrap, repaired, or tampered with. Your attorney will send a formal “spoliation letter” to the tow yard or company in possession of the item, legally demanding that it be preserved in its current state. This prevents the other side from destroying evidence, whether intentionally or accidentally.

Leveraging Official Reports and Documentation

While physical evidence tells part of the story, the official paper trail provides the framework for your case. These documents are created by neutral, third-party entities and carry significant weight in negotiations and in court. Gathering them quickly is essential.

Obtaining the Police or Incident Report

For any traffic-related death, the police report is the first official document created. It will contain the officer’s initial observations, measurements, witness statements, and often a preliminary determination of fault. You can typically request a copy from the law enforcement agency that responded to the scene within a few days of the incident. In a workplace death, a similar report might be generated by the company’s safety officer or by the Occupational Safety and Health Administration (OSHA).

Analyzing the Report for Inaccuracies and Omissions

Police officers are human, and they can make mistakes, especially when arriving at a chaotic scene. Do not accept the police report as the final word. Review it carefully with your attorney to look for:

Factual Errors: Incorrect street names, vehicle descriptions, or witness information.
Inaccurate Statements: Your loved one cannot give their side of the story, so the report may be heavily biased toward the other driver’s version of events.
Missing Information: Did the officer fail to note a malfunctioning traffic light or a key witness who left the scene?
Faulty Conclusions: The officer’s opinion on fault is not binding in a civil case. An accident reconstructionist may analyze the physical evidence and reach a very different conclusion.

Gathering Medical Records and the Autopsy Report

Medical records from the ambulance, emergency room, and the final autopsy report are critical. They establish the official cause of death and can be used to directly link the death to the injuries sustained in the incident. This is crucial for refuting defense claims that your loved one died from a pre-existing condition or some other cause. The autopsy report, prepared by the medical examiner or coroner, provides a detailed, scientific explanation of the injuries and can be a powerful piece of evidence.

Requesting 911 Call Transcripts and Dispatch Logs

The 911 calls made from the scene by witnesses or those involved can contain unguarded, spontaneous statements about what happened. A driver might admit fault or describe a key detail in the heat of the moment. These recordings and their official transcripts can be obtained through public records requests. Similarly, police and emergency medical services dispatch logs provide a precise timeline of when calls were received and when responders were dispatched, which can be useful for establishing the sequence of events.

The Power of Witness Testimony and Expert Opinions

While physical and documentary evidence provides the “what,” witnesses and experts provide the “how” and “why.” Their testimony can bring the facts to life and explain complex technical details to a jury in a way that is easy to understand.

Identifying and Interviewing Eyewitnesses

The police report will list any witnesses who remained at the scene to give a statement. However, there are often other witnesses who are not identified.

Canvass the Area: Return to the scene at the same time of day and on the same day of the week as the incident. You may find people who have a regular routine and saw something but did not want to get involved.
Look for Unconventional Witnesses: Employees at nearby businesses, residents in adjacent homes, or even mail carriers and delivery drivers may have seen or heard something important.
Interview Promptly: Memories fade quickly. It is important for your attorney or their investigator to speak with witnesses as soon as possible to get a fresh, detailed account of what they observed.

The Role of an Accident Reconstructionist

In any serious collision, hiring an accident reconstruction expert is not a luxury; it is a necessity. These are often former law enforcement officers or engineers with specialized training. They use physics, mathematics, and engineering principles to determine how an incident occurred. An expert can:

Analyze skid marks to calculate vehicle speeds.
Examine vehicle crush damage to determine the force and angle of impact.
Use data from the vehicle’s “black box” to see what the driver was doing in the seconds before the crash.
Create computer simulations and diagrams to visually demonstrate the sequence of events to a jury.

A qualified expert’s opinion can completely dismantle the defense’s theory of the case and prove that the defendant’s negligence was the sole cause of the tragedy.

Using Medical Experts to Connect Injuries to the Incident

The defense may try to argue that even if their client was negligent, the death was caused by something else. A medical expert can review the autopsy report and medical records to provide a professional opinion that links the specific injuries sustained directly to the defendant’s actions. This expert testimony shuts down speculative arguments and solidifies the element of causation in your claim.

Employing Other Specialists

Depending on the facts of the case, other experts may be needed.

Engineers: To analyze a potential product defect in a vehicle or piece of machinery.
Toxicologists: To interpret blood alcohol or drug test results.
Economists: To calculate the full extent of the family’s financial losses, including lost future income and benefits.
Vocational Experts: To testify about the deceased’s career path and earning potential.

Uncovering Digital and Electronic Evidence

In our modern world, nearly every action creates a digital footprint. This electronic data can provide objective, indisputable evidence that is free from the biases and memory lapses of human witnesses.

Accessing Cell Phone Records and Geolocation Data

Cell phone records can show if a driver was texting, talking, or using an app at the moment of a crash. This is powerful evidence of distracted driving. Geolocation data from the phone or vehicle’s GPS can also create a digital map of a person’s movements, speed, and location, confirming or refuting their version of events. Obtaining this information often requires a subpoena issued by your attorney.

Retrieving Data from an Event Data Recorder (EDR)

Most modern vehicles are equipped with an Event Data Recorder, or EDR, commonly known as a “black box.” This device records critical data in a continuous loop. In the event of a crash, it saves a snapshot of the 5-10 seconds before, during, and after the impact. This data can include:

Vehicle speed
Brake application
Throttle position
Steering wheel angle
Seatbelt usage

This data is objective and can instantly prove if a driver was speeding, failed to brake, or took evasive action. It is vital to have an expert download this data before the vehicle is destroyed, as the data can be lost.

Finding Surveillance Footage

Video is one of the most compelling forms of evidence. A clear video of the incident can end a dispute over fault immediately. Your investigative team should search for potential video sources, including:

Traffic and Red-Light Cameras: Maintained by local municipalities.
Business Security Cameras: Gas stations, convenience stores, and banks often have cameras pointed at the street.
Residential Doorbells: Ring cameras and other home security systems frequently capture activity on the street.
Dash Cams: From other vehicles that were in the area at the time.

This footage is often deleted on a short cycle (sometimes within 24-72 hours), so time is of the essence in requesting and preserving it.

Social Media and its Double-Edged Sword

Investigators will examine the social media accounts of all parties involved. A defendant might post pictures from a bar just before a drunk driving crash or complain about being tired before a trucking collision. At the same time, it is critical for the surviving family members to be cautious about their own social media use. Defense attorneys will look for photos or posts that could be used to argue that the family is not suffering as much as they claim, potentially reducing damages for loss of companionship.

Building a Proactive Case: Investigation and Legal Strategy

Gathering evidence is not a passive activity. It requires a coordinated, aggressive strategy led by a legal professional who knows what to look for and how to get it. A strong offense is the best defense against claims of comparative fault.

Why You Need an Attorney-Led Investigation

A wrongful death attorney does more than just file paperwork. They act as the director of a full-scale investigation. They have the resources to immediately hire investigators, accident reconstructionists, and other experts. They know the legal procedures for obtaining evidence through subpoenas and formal discovery requests. Attempting to do this on your own puts you at a severe disadvantage against the experienced legal teams of insurance companies.

Sending Spoliation Letters to Preserve Evidence

One of the first and most powerful actions your attorney will take is sending spoliation of evidence letters to all relevant parties. This formal legal notice instructs them not to destroy, alter, or lose any potential evidence related to the case. This includes vehicles, maintenance logs, driver records, cell phones, and video footage. If a party destroys evidence after receiving this letter, they can face severe legal penalties from the court, which can include the judge instructing the jury to assume the destroyed evidence was unfavorable to them.

Using the Discovery Process to Obtain Evidence from the Defense

Once a lawsuit is filed, the formal process of “discovery” begins. This allows your arizona wrongful death attorney to legally compel the other side to hand over evidence. This can include:

Interrogatories: Written questions the other party must answer under oath.
Requests for Production: Demands for documents, such as a truck driver’s logbooks, a company’s safety policies, or a driver’s cell phone records.
Depositions: Formal, sworn testimony taken from the defendant and other witnesses outside of court.

This process is often where the “smoking gun” evidence is found that proves the defendant’s liability and counters any claims of fault on the part of your loved one.

Documenting the Deceased’s Character and Habits

To counter defense attempts to paint your loved one in a negative light, you can proactively gather evidence of their good character. This can include testimony from friends, colleagues, and community members about their responsible nature, their safe driving habits, or their meticulous attention to safety at work. Performance reviews, awards, and certifications can all help build a positive profile that makes a jury less likely to believe they acted recklessly.

Conclusion

The moments following the loss of a family member are filled with grief and confusion. Yet, it is during this critical window that the foundation of a successful wrongful death claim is built. The doctrine of comparative fault is the defense’s most potent weapon, used to diminish responsibility and reduce the financial support your family rightfully deserves. Countering this strategy requires more than just a belief that the other party was at fault; it requires a mountain of objective, well-preserved, and expertly analyzed evidence.

From the perishable skid marks at an accident scene to the digital data stored in a vehicle’s black box, every piece of information matters. A comprehensive investigation involves securing physical evidence, obtaining official documents, interviewing all possible witnesses, uncovering electronic data, and retaining the right experts to interpret it all. This is not a task a grieving family can or should undertake alone. The process is complex, time-sensitive, and requires legal authority to compel others to preserve and produce key information.

Protecting your family’s future and honoring your loved one’s memory means taking decisive action. The insurance company and its lawyers began building their case to shift blame from the moment the incident occurred. To secure justice, you must meet their efforts with a more thorough and compelling presentation of the truth. If your family is facing this difficult journey, contact an experienced wrongful death attorney immediately. The sooner a professional investigation begins, the stronger your position will be to defeat claims of comparative fault and hold the negligent party fully accountable. Contact us for free consultation today.

How to Gather Evidence to Reduce Comparative Fault in Wrongful Death Cases