Law Offices of Ronald J. Palagi
Personal Injury Firm

a guide to

Wrongful Death

Defenses in a Wrongful Death Suit

Read about the different defenses used to combat a wrongful death suit.

In addition to statute of limitation 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 or she lived and brought his or her own claim for personal injuries. The main defenses are causation, comparative negligence. The availability of either of these defenses may bar a plaintiff from recovery or reduce the amount of damages awarded.


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. To satisfy this requirement, you do not have to show that the defendant was the only responsible party. You must only show a connection between the defendant's conduct and the injury, such that the injury would not have occurred without the defendant's actions.

Example: If a person was killed on Corporation X's amusement ride in part due to improper maintenance of a seat belt, but also because another rider pushed the decedent off the seat, Corporation X 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, or months, as where a doctor prescribes the wrong medication that over time results in the patients 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. Think of the concept of continuous causal connection as a line that connects from 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 the car accident example mentioned earlier, 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).

If there is no causal connection, the defendant will not be found responsible. 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.

Example: A person gets a serious head injury and does not get immediate medical attention. After several days of head pains, the person goes the hospital. While at the hospital, the person dies from his injuries while the hospital was delayed in trying to diagnose his 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 death.

Comparative/Contributory Negligence

Comparative negligence is conduct by the decedent that contributed to his or her own death.

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, up to a 50-percent-fault limit. In Nebraska, if the decedent was more than 50% at fault for causing his or her own injuries, then recovery is barred. 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.

Damages for Wrongful Death

Find out how damages are calculated in wrongful death cases.

Damages in wrongful death cases are intended to compensate for losses resulting from the death of a family member. Some losses are measurable - a widow in a wrongful death suit, for example, could seek to recover the financial support that she would have received had her spouse lived. Other damages are more general in nature. Types of recoverable damages include:

  • Direct Expenses- medical bills and funeral cost.
  • Loss of Benefits- what the person could have received in pension/retirement benefits had they lived.
  • Loss of Future Earnings- what the person who died would have earned in salary if he or she had lived.
  • Loss of Companionship- what the person who died would have emotionally provided to a relationship, and the mental pain and suffering resulting from the decedent's death.
  • Punitive Damages- what amount the defendant should be punished for his or her action resulting in the victim's death.
Amount of Damages

Calculating damages is a complex process involving multiple factors. Some factors include (1) how dependent the plaintiff was on the decedent; (2) the nature of the relationship with the decedent; (3) the anticipated lifespan of the decedent, (4) the anticipated earnings and other benefits of the decedent, and (5) the presence of any comparitive fault. Often, determining the appropriate amount of damages for a particular element can be difficult. For example, when addressing damages for loss of companionship, a jury must attempt to put a price tag on the emotional loss you suffered from the decedent death.

An important element in wrongful death damage calculations is in estimating expected or future income losses. Future losses are the amount of earnings and benefits the decedent would have earned if he or she lived. Therefore, it is common to take the victim's earnings at the time of his or her death and calculate the remaining years until retirement (or expected death) to determine future loss of earnings.

Example: Suppose a spouse, 25 years of age, was earning $20,000 a year at the time of his death. Since he was not expected to retire or die for another 40 years, his yearly earnings at the time of his death would be multiplied by the number of years he was expected to work before retirement or expected death ($20,000 X 40 years). In this instance, his future loss is $800,000.

The example above is a simple explanation of how future loss calculations are made. Most of the time, however, the calculations can get very complicated. In most cases, a life expectancy table is used to estimate the number of years the decedent would have lived had they survived. So instead of just using retirement age as a standard for life expectancy, a life expectancy table may consider other factors that may increase or decrease the number of years the decedent would have been expected to live.

Present Value

When using a life expectancy table to calculate future losses, courts will often reduce the total future loss to a present dollar value. Because most wrongful death damage awards are paid in a lump sum, a beneficiary essentially receives the total amount of earnings and benefits the decedent would have made over the course of his/her life, reduced to a single amount which is discounted to present dollars.

Example: A spouse works in a department store earning $20,000 a year. Assuming he works there for the next 40 years, he will make a total of $800,000 by the 40th year. The spouse suddenly dies as a result of a wrongful death. The surviving spouse would recover a lump sum payment designed to compensate her for the $800,000 loss, discounted to present dollars.

How is present value calculated?

In order to calculate present value, the future loss is first calculated using the life expectancy table. Once the future loss amount is calculated, it is then adjusted discounted using a mathematical table. The mathematical table estimates today's value of one dollar in the future based on the number of years the decedent was expected to live and an annual interest rate. After that is determined, the estimate from the table is multiplied by the decedent's yearly salary. The purpose for using present value is that a successful plaintiff will receive a sum that if invested at a reasonable interest rate, should equal the value of the future loss amount and cover expenses that may eventually arise if it is conservatively invested.

Death in the Workplace

Learn more about the responsibilities of a workplace when a wrongful death occurs on the job.

Under some states' Workers' Compensation Acts, employers are liable for workers' death benefits only for employees injured in the course of employment. The death benefit is payable in addition to any other benefits provided for under the Workers' Compensation Law, such as accrued and unpaid disability compensation. An employer must pay the full death benefit even if the deceased employee was suffering from a non-industrial, pre-existing disease,or if they sustained an injury that caused or hastened death. In addition to the death benefit, the employer is liable for the employee's reasonable burial expenses when an industrial injury results in death.

In order for dependents to receive death benefits on behalf of alleged dependents must file an application for collection and have a hearing held before a workers' compensation judge within one year after the date of death and within 240 weeks from the date of injury. Both of these time requirements must be satisfied. In cases involving the death of asbestos workers from asbestosis, however, the statute of limitations is one year from the date of death only.

Employees are any workers under a contract of hire with the employer other than independent contractors. Generally, in workplace injuries or death, the presumption is in favor of employee status, and the burden is on the party seeking to avoid liability to prove independent contractor status. The Legislature has specifically mandated that the statutes be liberally interpreted in favor of coverage for employees injured in the course of employmentIf death occurs while the decedent was on the job, the right to sue may change. If an employee who elects to take workmen's compensation, they do not have a right to sue his employer for injuries in the workplace. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.

If a person's death on the job was due to the negligent actions of a third party, however, some states allows dependents to pursue a wrongful death suit against the third party, regardless of whether the decedent elected for workmen's compensation through his employer.