How To Prove Wrongful Death

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A wrongful death is said to have occurred when someone is killed because of another person or entity's negligence or wrongdoing. While the defendant in such a case may be criminally prosecuted, a wrongful death lawsuit is a civil action that is separate and distinct from criminal court proceedings. A defendant is found "guilty" in a criminal case, but in a wrongful death action, he or she is found to be "liable" or financially responsible for the decedent's loss.

Four Elements That Must Be Proven

While the prosecutor has the burden of proof to prove a criminal murder or manslaughter case, in a civil wrongful death lawsuit, it is the plaintiff who has the burden of proof. For a defendant to be found liable in a wrongful death lawsuit, plaintiffs must prove that the defendants' negligence or wrongdoing caused the decedent's death. The surviving members who are filing the wrongful death lawsuit must prove each one of the following elements in order to win a case and secure monetary compensation for their losses.


In a wrongful death case, the plaintiffs must prove that the death of a loved one was caused either in part or in whole, by the carelessness, recklessness or by the negligent actions of the defendant. For example, when a distracted driver is talking on the phone or texting while driving and strikes and fatally injures a pedestrian, that is an example of a reckless act, which could be proven as negligent. To look at another example, if a doctor makes a surgical error or prescribes the wrong medication and causes a death, that could be proven as negligence as well.

Breach of duty

In order to be successful in a wrongful death claim, plaintiffs will have to prove that the defendant owed a duty of care to the victim. For example, drivers have a duty of care to operate their vehicles safely and to obey traffic laws. Doctors and medical providers have a duty to provide an acceptable standard of care to their patients. In a wrongful death lawsuit, the plaintiff must be able to establish that the defendant had a duty of care and that this duty was breached or violated as a result of their negligent actions. 


In order to prove that the defendant breached his or her duty of care, the plaintiff will also be required to prove how the negligence of the defendant caused the death of their loved one. For example, in a case involving a fata motorcycle accident caused by a driver who was operating under the influence, the plaintiff must be able to prove that the driver's decision to get behind the wheel and drive while impaired, caused the motorcycle accident that took the victim's life. In other words, plaintiffs must be able to prove that the defendant's negligence or wrongdoing caused the victim's death.


In order to prove a wrongful death case, the plaintiffs must also show evidence that they suffered quantifiable damages as a result of their loved one's death. These expenses may include medical expenses such as emergency room costs, surgeries, hospitalizations, cost of medication and medical equipment incurred prior to the victim's death; funeral and burial costs; loss of income, benefits and loss of potential earnings; loss of love, care, companionship, protection, guidance and inheritance; and pain and suffering endured by the victim before his or her death.

How the Burden of Proof Affects Claimants

While plaintiffs still bear the burden of proof in a wrongful death case, it is important to remember that because wrongful death actions are civil, the burden of proof is lower than in a criminal case. While a prosecutor in a murder case must prove the defendant's guilt beyond a reasonable doubt, a wrongful death lawsuit may be won based on a preponderance of the evidence or the significance of the evidence (of negligence) that is presented.

This is still a complex and challenging task. Proving a wrongful death lawsuit in court will require compiling strong and convincing evidence. There are a number of steps that need to be taken including devising a strategy for the case, investigating all claims thoroughly, and talking with experts and witnesses. The legal process may involve mediations, demands and often a claim settlement. It is important to remember that a majority of wrongful death cases are settled out of court. However, in cases where the parties are unable to come to an agreement, a lawsuit may be filed, and the case will go to trial before a jury.

Who Is Allowed to Sue for Wrongful Death?

The first step is to identify the relatives who are allowed to participate in a wrongful death claim. No matter how much other people might have loved the victim, only certain individuals are allowed to bring a California wrongful death claim.

Every state has its own rules about who can share in a wrongful death settlement. In California, the participants are limited to:

  • The victim's spouse or registered domestic partner
  • The victim's living children
  • The children of any deceased child of the victim
  • If the victim had no surviving children, siblings or other relatives who would have inherited from the victim if the victim had died without a will
  • The victim's parents and stepchildren if they were dependent upon the victim for support
  • Any minor who lived with the victim for more than 180 days prior to the victim's death and who depended on the victim for at least one-half of his or her support.

There can only be one claim; participants are not allowed to bring separate claims. Everyone who is eligible to participate in the claim should be notified that a wrongful death claim is being made so that they can share in the proceeds.

Keep in mind, however, that the victim also has a claim (known as a survivorship claim) for pain and suffering and financial losses between the time of the accident and the time of death. Anyone who is designated in the victim's will to receive a share of the victim's estate might benefit from a survivorship claim.

California wrongful death attorney can help family members decide who should participate in a wrongful death claim and (unless the victim died instantly) in a survivorship claim.

How to Prove Financial Losses

Participating relatives who depended on the victim for financial support are entitled to recover any economic loss caused by the death. An economic loss caused by a wrongful death is usually the loss of financial contributions to the family. A spouse, for example, has a community property interest in the victim's income. The loss of that income due to death causes a financial loss to the spouse.

Children have the right to be supported by a parent until they reach the age of majority. A wrongful death causes the victim's children to lose that financial support. Parents and stepchildren who actually received financial support from the victim also experience an economic loss due to the victim's death.

Economic losses are usually proved through records. A wrongful death lawyer will obtain tax returns and payroll records to determine how much income the victim was earning. An economist can then project the victim's future earnings to calculate the amount of financial loss a spouse or dependent will experience as a result of the victim's death.

How to Prove Non-Financial Losses

California law permits family members who can participate in a wrongful death claim to recover certain non-economic losses, including:

  • The loss of the victim's love, companionship, comfort, care, assistance, protection, affection, society, and moral support
  • In the case of a spouse or domestic partner, the loss of the enjoyment of sexual relations with the victim.
  • Primarily in the case of a child, the loss of the training and guidance that the victim would have provided.

To prove those losses, wrongful death lawyers interview the relatives who are participating in the claim to explore the nature of their relationship with the victim. While the people who are personally affected are usually the strongest witnesses, other relatives and friends who are not entitled to compensation can provide objective corroboration of the close relationship between the victim and his or her spouse and children.

How Lawyers Prove a Death Was Wrongful

Hiring a wrongful death lawyer has a number of advantages. First and foremost, a lawyer who has successfully handled similar wrongful death lawsuits has a thorough knowledge and understanding of the legal process that is involved. He or she knows the elements that go into building a strong case on your behalf. In addition, there are statutes of limitations or deadlines when it comes to filing a wrongful death lawsuit. Not filing a lawsuit in time can jeopardize your case. Your wrongful death attorney can help ensure that all documents are filed a timely manner. Retaining a lawyer can help you save time and money.

A wrongful death lawyer will also know how to properly determine the value or worth of your claim. He or she will thoroughly evaluate your situation to assess all the ways in which you and your family have been affected by this life-changing loss so you are able to receive maximum compensation for your losses. A skilled lawyer will also be able to take your case to trial if that is required.

How Our Attorneys Can Help

A wrongful death attorney can be a great source of support for you in your time of grief. By handling the tedious details of the case, which can be emotional and traumatic for family members to deal with, an experienced lawyer can move your case forward without disrupting your life and your healing process.

The experienced Orange County wrongful death lawyers at the Law Offices of Timothy J. Ryan can not only help you recover maximum compensation for your tremendous losses, but also help the negligent parties or wrongdoers accountable for their actions. If you have lost a loved one as a result of someone else's negligence or wrongdoing, call us at 714-898-4444 to schedule your free consultation and comprehensive case evaluation.



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Timothy J. Ryan & Associates

Timothy J. Ryan & Associates has earned a national reputation for aggressive client advocacy and real results for grieving families. If you have questions about your loved one's death, you can obtain a free consultation from attorney Timothy J. Ryan. Call (714) 898-4444 to get help today.