Evaluating Your Options

Evaluating Your Options

Duty, Negligence, And Fault — A Look At Important Elements In A Wrongful Death Case

Dale Watkins

If someone you love died as the result of an accident or because of someone else's actions, you might be able to file a type of civil case called a wrongful death case. This is not a murder trial — it is not even a criminal case, for that matter. Rather, it is an attempt to collect the money you are due for damages. In this case, the damages are related to the loss of your loved one, your companionship with them, and sometimes even the income that they would have earned to help support you.

Wrongful death claims can get pretty complicated. Your lawyer will need to have a strong case in order to get the judge to side with you and award the funds you are requesting. Basically, the construction of that case will hinge on three big concepts: duty, negligence, and fault. Here is a closer look at each of these concepts and how they'll play into a wrongful death case.


In order for someone to be considered responsible for your loved one's death, you first need to prove that the person (or company) had some sort of duty to the deceased. In the case of medical negligence claims, which is one of the most common types of wrongful death cases, you'd have to show that the doctor or nurse had a duty of providing your loved one with care. This is not too difficult. If a doctor agrees to treat a patient, they are generally seen as having a duty of care.

Proving duty can be tougher in other sorts of wrongful death cases. For example, in a car accident case, you would have to show that the driver responsible for the death had a duty. Some judges feel that any time a person is driving on the road, they have a duty to all other drivers on the road — but for other judges, this thinking is too remote.


Once duty is established, you have to show that the plaintiff violated that duty, which is defined as negligence. This is best illustrated by an example. If a doctor is determined to have had a duty to the deceased and that duty was to provide them with proper diagnosis and treatment — but the doctor failed or order tests that they should have ordered considering your loved one's symptoms — that would be negligence.

Here's another example. A driver had a duty to follow traffic laws, but they violated that duty by running a red light. This is considered negligence. 

In wrongful death cases, sometimes the act of negligence is actually not an accidental failure to follow laws or protocol but instead a purposeful action. For instance, if someone purposefully ran your loved one off the road, resulting in their death, this would also be considered negligence, although technically it was intentional. 


Fault is what ties the case together. If the other party is found to be "at fault," then you will have won the case. So what does fault mean in this instance? Put simply, it means that the perpetrator's negligent actions did lead to loss on your part. If you're suing someone who caused an accident, but the judge feels that your loved one's death was not actually due to that accident, then the plaintiff is ruled not to be at fault. On the other hand, if a collision is determined to have led directly to the death, then the other driver probably will be held at fault.

As you can see, these concepts are complex and nuanced. This is just an overview, and how duty, negligence, and fault apply to your situation may be a bit different. Your best bet is to meet with a wrongful death lawyer at a firm like Forstman & Cutchen LLP and ask them how to proceed. 


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