Wrongful death may be caused a number of ways: either through a deliberate act, strict liability or negligence. So what is negligence? It’s effectively the opposite of diligence, so it could be categorized as thoughtlessness, or making a mistake. Negligence is measured in relation to a ‘reasonable person’s’ actions in the same situation. However, negligence isn’t the same as carelessness, as someone could take a lot of care over doing something
So in practice, how do the courts determine whether or not someone has been negligent? It depends on the circumstances of the particular case, but broadly the court considers the actions (or failure to act) of the defendant, and then considers how different that standard was to what would be normally expected of a person in the same situation.
In order to establish negligence there must have been a breach of a ‘duty of care’ and a causal link between that duty and the wrongful death, regardless of whether or not the defendant is wholly or only partially responsible for the death. A duty of care means that there is a duty on a person to exercise care in the specific situation. For example, drivers on the road have a duty of care towards pedestrians on the sidewalk, and staff at a nursing home have a duty of care towards residents. How much care people are expected to take in the circumstances is again variable. But if a situation is very dangerous, or serious, the care required is greater than that which would be required in a less dangerous or serious situation. A surgeon operating on his patient would be expected to use a high degree of skill and care, because of the high risk involved.
In addition to the causal link between the injury and the defendant’s act or inaction, the risk of injury should also have been ‘reasonably foreseeable’ in the circumstances. A plaintiff in a wrongful death suit who is alleging that the defendant was negligent must prove this on a ‘preponderance of the evidence.’
Wrongful death occurs in many different situations, for example, an employer may be liable for the death of an employee if he was given the wrong type of equipment for a job, which then results in an accident. If the fleet department of a trucking company does not check a vehicle properly, and the breaks fail on the truck killing a child, the company could be liable for the wrongful death of the child. This is because the company was ‘negligent’ in ensuring its truck was safe to drive.
Negligence in a medical setting is often called ‘medical malpractice’ in which a person dies from neglect in hospital, or because of some form of negligence while under the care of medical staff. Examples of medical malpractice are: failing to diagnose a deadly disease, failing to spot fractured bones, not examining someone properly after an injury, or discharging someone when they should have been kept in hospital.
However, people also have a duty to take reasonable care of themselves. If a decedent failed to do this, for example by putting himself in grave danger, this would have the effect of contributing - and in some cases even negating - the negligence of the defendant’s responsibility for the wrongful death. Establishing whether or not someone has been negligent can be a complicated process so it is vital that you consult an attorney.