How to Prove a Wrongful Death Claim

The Four Legal Elements

To succeed in a wrongful death lawsuit, the plaintiff must prove four legal elements by a preponderance of the evidence (meaning it is more likely than not). These elements are the same foundational requirements as any negligence claim, applied to a case where the negligence caused a fatal outcome:

1. Duty of care — The defendant owed a duty of care to the deceased. For example, a driver owes a duty to operate their vehicle safely, a doctor owes a duty to provide treatment meeting the standard of care, and a property owner owes a duty to maintain safe premises.
2. Breach of duty — The defendant failed to meet the applicable standard of care. This is the central contested issue in most wrongful death cases. What would a reasonably prudent person have done in the same circumstances?
3. Causation — The defendant's breach of duty was the direct and proximate cause of the death. The plaintiff must show that the death would not have occurred but for the defendant's conduct, and that the death was a foreseeable consequence of the breach.
4. Damages — The death caused measurable losses to the surviving family members — lost income, funeral costs, loss of companionship, and emotional suffering.

Types of Evidence Used

Wrongful death attorneys build cases using multiple types of evidence:

• Police reports and accident reports — Establish the basic facts of the incident, identify witnesses, and often contain the investigating officer's initial assessment of fault.
• Medical records and autopsy reports — Document the cause of death, the injuries sustained, and the treatment provided before death. The autopsy report is often the single most important piece of evidence.
• Expert witness testimony — Accident reconstruction experts, medical experts, engineers, economists, and vocational specialists provide specialized analysis that supports the plaintiff's case.
• Workplace safety records — OSHA inspection reports, safety violation histories, and training records are critical in workplace fatality cases.
• Product testing and design documents — Internal company documents showing knowledge of defects, testing failures, or cost-benefit analyses prioritizing profit over safety.
• Surveillance footage and photographs — Visual evidence of the scene, the hazardous condition, or the incident itself.
• Witness statements and depositions — Testimony from eyewitnesses, coworkers, family members, and other parties with relevant knowledge.
• Electronic data — Cell phone records, vehicle black box data, electronic health records, and GPS tracking data.

Preponderance of the Evidence — Civil vs. Criminal

The burden of proof in a wrongful death case is preponderance of the evidence — the plaintiff must show that it is more likely than not (greater than 50% probability) that the defendant's conduct caused the death. This is a significantly lower standard than the criminal burden of proof, which requires proof beyond a reasonable doubt.

This is why a person can be acquitted of criminal charges and still be found liable in a wrongful death civil case. The most famous example is the O.J. Simpson case, where Simpson was acquitted of murder but found liable for wrongful death in a subsequent civil trial. The lower burden of proof made the difference.

Common Challenges in Proving Wrongful Death

Several factors can complicate a wrongful death case:

• Disputed causation — The defendant may argue that the death was caused by a pre-existing condition, an intervening event, or the deceased's own conduct rather than the defendant's negligence.
• Comparative fault — If the deceased contributed to the circumstances that led to their death, the defendant will argue for reduced or eliminated liability under the applicable comparative or contributory negligence rules.
• Multiple defendants — Cases involving several potentially liable parties require the plaintiff to prove each defendant's specific contribution to the death.
• Evidence preservation — Critical evidence may be lost, destroyed, or altered if not preserved promptly. This is particularly important in workplace accident and product liability cases.

Experienced wrongful death attorneys anticipate these challenges and take proactive steps — including sending evidence preservation letters, retaining experts early, and conducting thorough pre-suit investigation — to build the strongest possible case.