Comparative Negligence and Wrongful Death Claims

It isn’t always clear who is at fault in a fatal accident. There may be many responsible parties to blame. The victim could also share some fault in the accident. When the victim’s negligence was a partial cause of the accident, it can change the legal options for the surviving family members.

Comparative negligence can reduce compensation in a wrongful death lawsuit. The legal process for the family depends on state comparative negligence laws. To find out what comparative negligence means for your case, talk to a local wrongful death lawyer.

How Comparative Negligence Affects Your Case

Comparative negligence means an injury victim shares responsibility for the accident. Some accidents involve shared negligence of multiple responsible parties. This includes shared fault by multiple defendants and the plaintiff.

A plaintiff’s comparative fault can change the outcome of their case and will depend on state law. In a few states, any amount of fault will erase any chance to recover damages. In most states, your level of fault reduces your compensation.

In a wrongful death case, surviving family members can get fair compensation for the loss of their loved one. Economic and non-economic damages in a wrongful death suit can include:

• Medical expenses
• Loss of financial support
• Funeral costs
• Pain and suffering
• Emotional distress
• Mental anguish
• Loss of companionship
• Punitive damages

However, comparative negligence in wrongful death claims can reduce the damages that surviving family members can recover, depending on the degree of the decedent’s fault.

Proving Negligence in Wrongful Death Claims

Liability in most wrongful death cases is based on negligence. Negligence is the failure of someone to act like a responsible person, which causes harm to someone else. The elements of negligence include:

• The defendant owed a duty of care to the victim
• The defendant breached their duty of care by failing to act in a reasonable way
• The defendant’s actions caused the victim’s death

An example of negligence is a truck accident where the truck driver failed to follow traffic laws. Drivers owe a duty of care to others on the road. A reasonable driver follows traffic safety laws. A driver who violates traffic laws can cause an accident. The negligent driver is liable for personal injury or wrongful death caused by the accident.

Determining Fault in Wrongful Death Accidents

A wrongful death lawsuit will determine who was at fault and their share of fault. In most wrongful death cases, the jury will hear the facts of the case and decide the fault.

Evidence includes physical evidence, testimony, and expert witness reports. After getting all the relevant information about each party’s liability, the judge instructs the jury to allocate fault. The jury attributes a degree of fault to each party, totaling 100%.

In settlement negotiations, the two sides will agree on each party’s level of fault, which will affect the final settlement amount.

State Laws on Comparative Negligence

States have different approaches to comparative negligence laws. Your options for getting compensation for your loved one’s death can depend on state law. Generally, state law follows one of three options for the injury victim’s negligence:

• Contributory negligence
• Pure comparative fault
• Modified comparative fault

Contributory Negligence

Contributory negligence is the strictest standard. Only a few states continue to use this standard. Under contributory fault, the victim can’t recover any compensation if they share any blame for the accident.

For example, a negligent driver causes a fatal car accident with another driver. The deceased driver was overdue for getting new tires. A jury finds the negligent driver is 99% responsible, and the deceased driver is 1% responsible. In a contributory negligence state, the victim’s family gets nothing in wrongful death damages.

As of December 2024, only four states use contributory negligence: Alabama, Maryland, North Carolina, and Virginia.

Pure Comparative Fault

More than 10 states use a pure comparative fault rule. With pure comparative fault, the plaintiff’s level of fault reduces the amount of damages they can recover.

For example, a motorcycle rider dies in a vehicle accident with a distracted driver. The jury found the family suffered $100,000 in total damages. The jury determined that the driver was 80% at fault and the motorcyclist was 20% responsible for the motorcycle accident. The family could recover 80% of the damages, or $80,000, from the distracted driver.

With pure comparative fault, the plaintiff could be more at fault than the defendants. Even if the deceased person is 99% at fault, their estate could still get 1% of damages.

Modified Comparative Fault

Most states follow a modified comparative fault policy. With modified comparative negligence, the plaintiff’s damages are reduced by the level of fault up to a limit. If the plaintiff is as much or more at fault, they can’t get damages. Some states follow the 51% rule, where the plaintiff can’t recover anything if they are 51% or more at fault. Other states follow the 50% rule, where the plaintiff can’t recover if they are 50% or more at fault for the accident.

How a Wrongful Death Lawyer Can Help

Defendants use comparative negligence to avoid liability for causing a fatal accident. Your lawyer can anticipate a comparative negligence claim to defend your case. To learn more about your legal options, contact an experienced wrongful death attorney in your state.