Can You File a Wrongful Death Claim if the Victim Was Partially at Fault?
You can file a wrongful death claim if the victim was partially at fault. If the deceased person (decedent) is less than 50% liable, you could recover partial damages from any liable parties. However, if the decedent is more than 50% at fault, you may be ineligible to get damages.
Meet with wrongful death attorneys in Chicago if you are considering taking legal action against anyone responsible for your family member’s death. A wrongful death attorney is empathetic and compassionate. They can evaluate your case and let you know if a wrongful death claim is warranted.
How Modified Comparative Fault Applies to a Wrongful Death Claim
The Illinois Compiled Statutes (ILCS) define modified comparative fault, which can impact the damages you receive in a wrongful death claim. Per 735 ILCS 5/2-1116, there are limits on how much someone can recover in a wrongful death claim based on their percentage of fault.
With modified comparative fault, you can still submit a wrongful death claim if the victim is 1-50% at fault. In this scenario, what you receive in compensation can be reduced by the victim’s percentage of fault. For example, a judge or jury rules a victim was 10% liable. This means you may get 90% of the damages you requested.
Modified comparative fault bars the recovery of damages in a wrongful death case if a victim is primarily at fault for their death. For instance, someone files a wrongful death lawsuit, and the court finds the decedent is 51% liable. The plaintiff may not get damages since the decedent was more at fault than anyone else.
When Two or More Parties Can Be at Fault for a Wrongful Death
Consider an example to understand when multiple parties can be liable for a wrongful death. A motorist is speeding when they crash their car into a vehicle. Meanwhile, the driver of the latter vehicle ran a red light, which contributed to the accident. Both parties share blame for the incident. If the accident is fatal for either of the drivers, their surviving family members could have grounds for a wrongful death claim.
In addition to car accidents, there are times when two or more parties are to blame for truck collisions, motorcycle crashes, and slip and fall incidents. Talk with a wrongful death lawyer if a family member dies in these incidents or others and someone else may be liable. Your attorney can determine if you have grounds for a wrongful death claim. If so, they can help you prove that your late family member was not at fault.
How to Prove That a Late Family Member Was Not Liable
Hire a lawyer with wrongful death case experience. Your attorney will gather medical records, witness statements, and other evidence to support your case. They prepare an argument designed to prove a liable party was negligent.
Prove negligence by showing that a party had a duty of care to your late family member and violated this legal obligation. Your lawyer will highlight this duty of care in their argument. They want to make it clear that a party breached their duty of care, causing your loved one’s death and resulting in losses.
Work with your lawyer to get your case ready for trial. Before your trial date, review any settlement offers from a liable party or their insurer. If you do not get an offer that meets your expectations, you and your attorney can present your case to a judge or jury.