WI Wrongful Death Attorney | Wrongful Death Defense Options
3 Defenses A Wrongful Death Attorney Might Pursue When a loved one has died as a result of someone else’s negligence, surviving family members might decide to file a wrongful death lawsuit. Such cases can be complex and emotionally trying, so it’s a good idea to consult with an experienced wrongful death attorney to see if you have a case before getting your hopes up. Even if the other party’s guilt is obviously apparent to you, it still must be proven to the judge or jury – and there are several defenses that the defense attorney can pursue. We want to take a look at three of the most common in this post. 3 Defenses To Wrongful Death Lawsuits The two main defenses to wrongful death suits are: causation and comparative negligence. Sometimes, these defenses can prevent plaintiffs from recovering damages at all, at other times, they can reduce the amount of damages that are awarded. There are also statute of limitations restrictions. In Wisconsin, the wrongful death statute of limitations is 2-3 years. If a lawsuit isn’t brought within that timeframe, it will not be allowed to proceed by the court.
- Causation requires the plaintiff to provide proof that the death was a result of the defendant’s negligence. A plaintiff must prove a connection between the defendant’s actions and the injury. This connection is vital to combating the lack of causation defense but, fortunately, it does not have a time limit. If the injury happened right at the time of neglect or months or years afterwards, as long as the plaintiff can prove a connection between the fault and the injury/death, causation can be established. Without a causal connection, the defendant will not be held responsible for the wrongful death. For example, if the deceased did not exercise reasonable care in obtaining treatment for the injury, it could be argued that the death was due to his/her own actions and not those of the plaintiff.
- Comparative Negligence. The comparative negligence defense argues that the deceased’s own conduct contributed to or was responsible for the death. A good example of this is a bicyclist who is hit and killed by a car at night. If the biker didn’t have brake or light reflectors, it may be argued that he/she was comparatively negligent. When the deceased is found to be comparatively negligent, the amount of damages awarded is usually reduced. The jury will be asked to determine how much the deceased was at fault, typically expressed in percentage terms. Then, if it is determined that there was comparative negligence, damages will be reduced by that percentage amount. Since juries are charged with determining comparative negligence, this defense option cannot be determined until after the trial has begun. In order to recover damages, a plaintiff must be less negligent or equal to the negligence of the defendants.