Wrongful Death Compensation and Comparative Liability - Mazow | McCullough, PC
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Can You Still Get Compensation in a Wrongful Death Lawsuit If Your Loved One Was At Fault?

Wrongful Death LawsuitContrary to popular belief, you can still get compensation in a wrongful death lawsuit if your loved one was at fault. The settlement is reduced based on the portion of blame assigned to your loved one. If your loved one was responsible for more than half of the incident, you may not be entitled to any compensation at all. Keep reading to learn about comparative liability.

What is Comparative Liability?

In wrongful death lawsuits, comparative liability or comparative negligence laws allow the courts to split the blame between defendants and claimants. In such a case, the claimant, or plaintiff, brings forward a wrongful death lawsuit. The claim is that the defendant’s negligence or recklessness caused the death of the claimant’s loved one.

In response, the defendant argues that the victim was at fault in their own death. After hearing evidence and testimony presented by both sides, the judge or jury assigns blame to the defendant and/or the deceased. They also determine the settlement amount, which may be reduced based on any comparative liability assigned to the victim.

Example of a Wrongful Death Lawsuit with Comparative Liability

For an example of comparative liability in wrongful death lawsuits, imagine your loved one is hit by a commercial truck. In response, you bring forward a wrongful death suit. The lawyers for the trucking company claim your loved one was crossing the street illegally and that their actions contributed to the accident.

Based on that information, the judge and jury determine that your loved one was responsible for 10% of the accident. As a result, your settlement is reduced by 10%.

Comparative Liability and Wrongful Death Settlements

Imagine that the jury in your case decided on a $500,000 settlement, They then determined that your loved one was responsible for 30% of the accident. In this situation, the settlement is reduced by 30%, bringing the settlement down to $350,000.

Both Massachusetts and New Hampshire follow the 51% Bar Rule. Under this rule, a plaintiff cannot recover a settlement if the courts decide the plaintiff is responsible for 51% or more of the accident. In other words, if the wrongful death victim bears more of the responsibility than the defendants, you cannot recover a settlement.

Proving Comparative Negligence in a Wrongful Death Suit

In wrongful death cases, the defendant cannot just claim that your loved one was partially to blame. They must provide proof that your loved one was responsible for part of the incident.

Most wrongful death cases allow for this type of defense. However, under Massachusetts law, the defendant cannot claim comparative negligence based on breach of warranty in wrongful death cases related to product liability.

For example, if your loved one died due to a dangerous product, you would bring a wrongful death lawsuit against the product’s manufacturer. The manufacturer’s lawyers may claim that your loved one was partially at fault for misusing the product. However, the attorneys cannot bring forward a defense based on the idea that your loved one took actions that negated the product’s warranty.

Fighting Comparative Liability Claims

Comparative liability can reduce your wrongful death settlement. Insurance companies often try to bring comparative liability into play during wrongful death cases. This accusation can be emotionally and financially damaging to survivors. To ensure you are prepared to fight this type of defense, you need an experienced wrongful death lawyer.

At Mazow | McCullough, PC, we provide our clients with a personal level of assistance. We understand the devastation of losing a loved one due to another’s negligence. If we take on your case, we will work diligently to get you the fairest settlement possible. To learn more, contact us today.

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