Injury Lawyers

In addition to statute of limitations restrictions, there are defenses that may be used to combat a wrongful death suit. The available defenses are limited to those that could have been made against the decedent had he lived and brought his or her own claim for personal injuries. The main defenses are causation, comparative negligence, and imputed comparative negligence. If either of these defenses is viable, it may bar a plaintiff from recovery or reduce the amount of damages awarded.

Causation

In order to hold a defendant responsible for wrongful death, you must prove that the defendant’s conduct was the cause of the decedent’s death. The defendant does not have to be the sole cause of death, but they must be implicated somehow. There has to be at least be a connection between the defendant’s conduct and the injury, such that the injury would not have occurred without the defendant’s actions.

Here is an example: If a person was killed on Super Fun Land’s amusement ride in part due to improper maintenance of a seat belt, but also because another rider pushed the decedent off the seat, Super Fun Land may still be found liable for damages.

Often, the period when the fault occurred and when death results can take seconds, as in the case of a car accident where a victim dies at the scene but it can also be a matter of months, as where a doctor prescribes the wrong medication that over time results in the patient’s death. The period between the fault and the injury, however, is not a controlling factor necessary to show proximate cause. For example, if a decedent died due to injuries he received in an accident three months ago, the negligent wrongdoer is still liable.

The continuous causal connection between the fault and the injury is the important element necessary to prove causation in a wrongful death suit. The continuous causal connection is a direct line that links the fault to the injury. The line represents the sequence of events that occur from the point of fault to the point of injury. In a car accident case, the defendant’s car crashed into the victim’s car and the victim died. In that instance, there was an obvious connection between the fault (the auto crash) and the injury (death).

The defendant will not be found responsible if there is no direct causal connection. If prior to death, the decedent did not exercise reasonable care in obtaining treatment for the injury, it might be found that the proximate cause of the decedent’s death was not due to the defendant’s conduct or activity, but rather due to the decedent’s own actions.

Here is an example: A person gets a serious head injury and does not get immediate medical attention. After trying to deal with the injury themsevles, the person goes to the hospital. While at the hospital, the person dies from his or her injuries, while the hospital was delayed in trying to diagnose the injury. Although, the hospital may have been negligent in its treatment, the proximate cause of death may be found to be the person’s failure to seek medical attention if earlier treatment may have prevented his or her death.

Comparative Negligence

Comparative negligence is conduct by the decedent that contributed to his or her own death. Here is an example: A person riding a bicycle at night without brakes or light reflectors who is later struck and killed by a truck may be comparatively negligent.If a decedent is comparatively negligent, the amount of any damages awarded may be reduced by the percentage of fault assigned to the decedent. If the decedent is found to be 50% at fault, their damages awarded would be reduced by 50%. The defense of comparative negligence, however, is a fact for the jury to consider and it generally cannot be determined until after a case begins.

Imputed Comparative Negligence

In some instances, one of the beneficiaries may be comparatively negligent or responsible for the decedent’s death. In some states, if one beneficiary is partially or wholly at fault in the decedent’s death, the other beneficiaries cannot sue for wrongful death. In Florida, however, only a beneficiary who is partially at fault cannot recover damages. If a suvivor is found to be negligent, the non-negligent survivor’s recovery cannot be reduced due to another survivor’s negligence. Frazier v. Metropolitan Dade County, 701 So.2d 418, 420. (Fla. 3d DCA 1997).

This entry was posted on Friday, October 9th, 2009 at 7:05 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
Top incoming search terms for this post