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How To Prove Fault In A Wrongful Death Claim

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What Needs To Be Proven?

Wrongful death lawsuits have a specific set of rules that apply to them. In fact, they are some of the most complicated types of civil claims out there. One of the most complicated aspects of any wrongful death claim is standing: who is entitled to bring a wrongful death case on behalf of a deceased loved one? That is more clearly discussed HERE in another article, but remember, there is no substitute for a consultation with an experienced lawyer.

proving fault in wrongful death cases

Don’t try to piece together legal advice from internet articles, especially in as complex an area of law as wrongful death.

Once standing is established, an investigation into other potential claimants needs to be considered before moving on toward the four aspects of a valid wrongful death case. Depending on the circumstances, there may be other potential claimants that may have an equal, or in some cases, greater claim to the settlement funds. Assuming these complexities are already settled, and all of the claimants have been identified, only then can the analysis move on toward establishing the elements of wrongful death.

The elements of wrongful death are generally the same as any negligence action, and all of them need to be proven by competent evidence to establish a valid claim. These elements are: duty of care, breach of duty, causation, and damages. Without all of these elements present, then there are no grounds for a wrongful death claim, or any negligence claim. So let’s take a deeper look at each element of a valid wrongful death case so you can understand if you have a case worth pursuing and how to prove fault.

Duty Of Care

Duty of care is a person’s duty to adhere to a standard of reasonable care to avoid careless acts that could foreseeably harm others. It is important to remember that the duty of care is something that changes with the circumstances. There are duties of care in common everyday life, such as following the rules of the road and driving in a reasonable and prudent manner while operating a motor vehicle. There are also professional standards of care for doctors and other professionals to follow.

Laws are built around a person’s duty to act in a safe manner, so it is safe to say that the average person’s duty of care starts with a duty to follow the laws and regulations put forth by our local and federal governments. These can be things such as not hurting another person, not being violent towards other people, not putting others lives in danger in any situation such as driving, using guns, knives, fireworks and so on. You have a duty to care toward the people around you and acting in a manner that can reasonably or foreseeably hurt the people around you is not safe. Failing to follow the laws which keep others safe is considered a breach of your duty of care which we will discuss next.

Breach Of Duty

Once a duty of care has been established, such as laws regarding not committing the act that caused the wrongful death, you have an obligation not to breach that duty of care. So if there are laws that tell you that driving drunk is not legal (duty of care) and you go out and drive drunk, then you have breached your duty of care by not acting in accordance with the laws. You would also have breached the more general duty of care to avoid careless acts that could foreseeably harm others. This applies to all types of illegal acts, such as speeding, reckless driving, violence, maintaining a safe property where the public will be and much more. If a duty of care has been established and then you break that duty of care and your actions lead to a wrongful death, then 2 of the 4 main pieces of a valid case have been established and the defendants will move on to determining causation. Also, keep in mind that a breach of the duty of care need not be as serious as violating the law, but it is the clearest analogy by which to explain the concept.


Causation is a critical piece of proving fault to ensure that you have a valid wrongful death claim. Once duty of care and the breach of that duty have been established, next is determining if the breach of duty actually caused the incident to happen that led to the wrongful death. In simpler terms, there has to be a nexus between the negligent party’s actions and the injury or death that occurred. This is also referred to as proximate causation. To clarify further by way of example, If an accident occurred because one driver ran a red light while speeding, and but for these actions, an accident in an intersection controlled by a traffic light would not have occurred, the causation element has been satisfied. It was the act of running the red light while speeding that directly caused the accident.

There are other potential circumstances that are not as clear cut as the example discussed above. Causation can also have multiple moving parts. By way of further example, if a driver running a red light only did so to avoid being rear-ended by an out-of-control tractor trailer truck, then the driver of the car might have an argument that their running the red light was not the proximate or legal cause of the accident. In that hypothetical scenario, the driver running the red light would argue that, but for the out-of-control tractor trailer truck barreling toward them, the accident would not have happened, and therefore the proximate or legal cause of the accident was the tractor trailer truck, and not the driver running the red light.

There are even more complicated fact patterns that deal with causation. A recent Colorado case involves the responsibility of an oil-tanker truck for causing a spill on a roadway, which led to a large backup of traffic after a hill in the road. A driver traveling at the highway speeds cresting the hill was unable to slow down fast enough to avoid colliding with other motorists that were stuck in traffic, and blamed the oil-tanker truck driver for the crash for causing the spill. These issues are litigated in courts across Colorado and the United States on a daily basis, and the analysis is always changing with new opinions from reviewing courts.

In situations with multiple moving parts, or more than one vehicle at issue, it is important to narrow down the issue of causation early to avoid a potentially fatal mistake in recovering for a wrongful death claim. An experienced wrongful death attorney will be aware of this, which is why one of the first steps in any investigation of a wrongful death claim is to secure any police reports or video footage that shows the accident.


Once all of the above elements have been established, the last piece of the puzzle is determining if there were any wrongful death damages incurred. Damages can be a multitude of things, but are broken down into two general categories: economic and non-economic damages.

Examples of economic damages in a wrongful death case include funeral expenses and loss of financial support from the deceased person. This is most easily demonstrated in the case of a deceased spouse who was a primary breadwinner, where the surviving spouse can claim the loss of future income from their deceased spouse in a wrongful death claim. These types of financial losses are called economic damages because they are able to be quantified to some degree economically.

The second type of damages are called non-economic damages, and these are impossible to quantify in the case of a wrongful death claim. No one would trade the life of his or her loved one for any amount of money, and it is very difficult to arrive at a fair dollar figure for non-economic damages in cases where an accident involved a death. Because of this inherent difficulty, the legislature has capped the amount that a surviving claimant can receive in non-economic damages arising from a wrongful death. This cap depends on the severity of the at-fault party’s conduct, and is adjusted for inflation. An experienced wrongful death attorney can more accurately advise you with respect to what this cap is in relation to any specific case.

What Is A Wrongful Death Lawsuit?

A wrongful death lawsuit is a civil lawsuit meant to bring financial compensation to the deceased person’s family members after their death. This happens when a person or company acts negligently and that act of negligence causes another person’s death, and the parties are not able to come to a settlement and are forced to file a lawsuit. The person or entity responsible for that death can be held liable for their actions and forced to repay the victim’s family via monetary compensation.

The Burden of Proof

Burden of proof is a term used in the legal industry to describe who has the responsibility to prove what happened, and to what degree. In wrongful death lawsuits, the person suing the negligent party is called the plaintiff, and has the burden of proof. This means, first, that they are responsible to bring evidence forward that establishes the four elements discussed above.

There are also different degrees of proof, or burdens of proof. In a wrongful death case, the plaintiff must prove his or her claim by a preponderance of evidence. Preponderance of the evidence is a standard that roughly equates to “more likely than not,” or at least 51% likely. If the plaintiff can establish, to the satisfaction of a jury, that it is more likely than not that the four elements above are satisfied, then the law requires the jury to find in favor of the plaintiff. The defendant does not have a burden of proof in a civil case, unless the defendant has also chosen to file a countersuit.

Intentional Or Reckless Actions, And Willful And Wanton Conduct

Some accidents are accompanied by circumstances that are extraordinary. The clearest example of these circumstances in a wrongful death case would be a car accident caused by a driver who was extremely intoxicated and driving in an excessively reckless manner. Under these circumstances, the plaintiff may be able to recover additional damages, called exemplary damages under Colorado law (sometimes referred to colloquially as punitive damages) if they can prove to the jury that the defendant acted with fraud, malice, or willful and wanton conduct. Exemplary damages are not awarded very often, but depending on the circumstances, an experienced wrongful death attorney can leverage the threat of exemplary damages to force a settlement with the at-fault party.

Timeline To File

In Colorado, the statute of limitations for wrongful death claims allows the family or loved ones of the deceased up to 2 years after death. This is a hard and fast rule, and a case can be completely destroyed by failing to pay attention to the statute of limitations and filing it late. Even if you have all of the elements discussed earlier in a row, you still need to file your claim within two years of the death, or your recovery could be completely barred.

How A Lawyer Can Help

Navigating a wrongful death claim is no easy task. There are many moving parts and various aspects that need to be proven efficiently to ensure you get a good outcome and more importantly, fair compensation. If you don’t deal with cases like these all the time, this can be very daunting and it is very easy to mess up your entire case. This is where exceptional wrongful death lawyers can help you. At Rector Stuzynski LLC, we have been fighting and winning wrongful death claims for our clients for decades with an extensive successful track record. Our long list of 5 star reviews shows you that our clients love us and the results we produce. We offer free consultations 24/7 and would be happy to discuss your case with you anytime. Feel free to give us a call or stop by our office in Downtown Colorado Springs, CO to speak with one of our wrongful death attorneys.

Areas We Serve

We serve clients injured anywhere throughout the state of Colorado, but we focus on residents of these areas: Colorado Springs, Manitou Springs, Fountain, Briargate, Monument, Black Forest, Pueblo, Canon City, Larkspur, Security-Widefield, Peyton, Castle Rock, Teller County, El Paso County, Elbert County, Park County, Douglas County and beyond.