Can You Sue for Wrongful Death if the Deceased was Partially at Fault?
While this is not the case in every state, you can still sue for wrongful death in New York– even if the deceased was partially at fault. However, if the jury finds that your loved one did share part of the accident’s fault, it will likely reduce the amount of compensation that you can recover.
What is Comparative Negligence?
This concept is known as comparative negligence. Notably, New York is one of the states where it does not matter to what degree the deceased was at fault, as long as it was less than 100%. So even if a jury found the victim to be 99% at fault for the accident, they could still recover for damages caused by a defendant who was 1% to blame.
How Does the Jury Determine if Someone was Negligent?
These cases are especially complex, which is why it’s best to hire a qualified New York City wrongful death lawyer. The jury will be tasked with deciding whether or not the defendant was negligent, based on the following elements:
- The defendant owed a duty of care to the deceased
- The defendant breached this duty
- The victim suffered damages (in these cases, death)
- Those damages were directly caused by the defendant’s breach of the duty of care
Where these lawsuits become more confounding is when the defendant claims that the deceased was negligent as well. Using those same elements above, the jury will also determine if the victim was negligent.
What if Both Sides Were to Blame?
If both the defendant and the deceased are found to have been responsible, the jury will decide how much of the blame each side deserves. The amount of damages that the plaintiff is awarded will then be reduced in direct correlation with how much of the responsibility the jury assigned to the deceased. For example, if the total damages are exactly $1,000,000, and the jury finds that the defendant was 75% at fault and the deceased was 25% to blame, the plaintiff will be awarded $750,000.
Possible Examples of Comparative Negligence
Even in cases where the defendant acknowledges that they were negligent, they will still likely try to prove that the deceased was at least partially to blame. There are several possible scenarios involving an accident where both parties share a portion of the blame– here are some common examples:
- In a fatal car accident, the defendant may claim that the deceased was not wearing a seatbelt.
- In a motorcycle accident, the defendant may assert that the victim was not wearing a helmet.
- In a medical malpractice claim, the defendant may claim that the victim failed to disclose pertinent medical history information before the surgery.
- In a deadly slip and fall accident, the defendant may claim that the deceased did not obey signs that warned them of danger in that area.
This is Why You Need an Attorney
As noted above, wrongful death lawsuits where comparative negligence may be present are complicated. Not only does your attorney need to prove that the defendant was negligent, but also minimize the amount that the deceased is found to have been responsible. With so much at stake and so many issues that need to be adjudicated, you need a skilled and experienced lawyer at your side.
At Douglas and London, we have won over $18 billion in settlements and verdicts on behalf of our clients. Our New York City personal injury lawyers have the experience and the resources to maximize your financial recovery, and our results speak for themselves.
Contact us for a free consultation
If you have questions about a wrongful death claim where the deceased may have been partially at fault, call us today for a free consultation. We are always available, and since we work on a contingency-fee-basis, there are no upfront legal fees.
