Wrongful Death Lawsuit: An Attorneys Perspective

For most people, any death that happens in an accident feels wrong. It is a common thought that someone should be “to blame,” leading families of victims to seek the help of a wrongful death attorney to get compensation for their losses. Yet not all cases where someone dies in an accident are actual wrongful death cases. Here’s an attorney's perspective of what these cases entail and how they play out in court.

Three Key Elements that Prove Wrongful Death

In a wrongful death case, a plaintiff must prove three things to be true, and the burden of gathering proof and evidence falls on the plaintiff and his or her attorney. If these are all true, then the case has merit as a wrongful death case.

Duty of Care

First, the plaintiff must prove in court that the at-fault party owed a duty of care to the person who died. This may be a duty to perform care for the person, or it may be the duty to follow known rules and regulations, such as the rules to drive on public roads. Duty of care can also apply to medical professionals who have a duty to provide proper medical care to their patients.

Breach of Duty of Care

If a duty of care exists, then the plaintiff must be able to prove that the duty was breached. Failure to follow the rules of the road or offer adequate care for someone could be a breach of duty of care.


Finally, if there was a duty of care and that duty was breached, then the plaintiff must be able to prove that the breach caused the death. Breaking the law or failing to provide the right level of care required does not necessarily mean a wrongful death case occurred. That action or inaction must be the direct cause of the death.

An Example of Wrongful Death

Sometimes understanding these three elements is easier with an example everyone can understand. Imagine a scenario where a driver runs a red light and crashes into another driver, causing the other driver’s death. In this scenario, it seems obvious that the driver who ran the light is at fault and the death was in fact a wrongful death.

In this scenario, the duty of care is the duty to follow the rules of the road and stop at the red light. The person’s choice to run the red light led to the breach of that duty. If the collision was the full cause of the death, then this case is likely eligible for a wrongful death lawsuit.

An Example That Is Not Wrongful Death

Now take a look at the scenario above and think about another factor. The first driver runs the red light and causes a collision. One of the drivers involved in the collision dies as a result of injuries. Yet in the investigation it was found that the deceased driver also had a mechanical malfunction with his car that prevented him from stopping to avoid the collision. Even though the first driver broke the law, and that action caused the crash, it may be possible for the defendant to avoid wrongful death charges because of the added component. If the mechanical problem was the causation of the death or contributed to the crash, the at-fault driver would not be liable for the wrongful death.

Who Can File a Wrongful Death Lawsuit?

If you have lost someone you care about and believe you have grounds for a wrongful death case based on the three key factors above, talking to a wrongful death attorney quickly is critical. However, first you also need to be certain that you have the legal right to file a wrongful death lawsuit.

The regulations surrounding wrongful death claims are regulated on a state by state basis. In Arizona, the surviving spouse, child, parent, or guardian of the deceased person, or the legal representative of one of these parties, is able to file. Also, the personal representative of the estate can file, even if that person is not related to the deceased. These individuals have two years from the date of death to file the lawsuit, which is why prompt help from a wrongful death attorney is important as soon as wrongful death is suspected.

Key Actions to Take in a Wrongful Death Case

If you suspect that your loved one died in a wrongful death case, there are certain things you need to do to make your case easier for your attorney.

First, find and enlist the help of a wrongful death attorney as soon as possible. This prevents problems that occur when evidence is lost or cleaned up.

Second, take as many photos as you can of the scene where the accident took place, and collect other evidence as appropriate. The more information you have, the better your case will be.

Finally, remember that the insurance company is not on your side. Never take a settlement without talking to a legal professional to ensure you are getting the full value you deserve as the family member of a victim. Lump sum settlements are often appealing because they seem large, but when you start to look at the valuation of a wrongful death case, you realize that they are not quite as appealing as you once thought.

The emotional aftermath families suffer in an unexpected death can make it difficult to seek the right legal help. Prompt action and an understanding of the legal process can ensure families get the compensation they deserve and at-fault parties are held liable for their actions.