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A potential misconception about wrongful death law is that it requires a defendant to have acted deliberately. While deliberate actions certainly can fall into this category, wrongful death claims extend far beyond cases where someone made an overt choice. Here's what you can expect a wrongful death attorney to tell you about how deliberateness factors into claims and suits.
Liability
It's not necessarily the conscious efforts of the defendant that determine whether they're at fault. Instead, the legal concept of liability applies. This means there were circumstances that would lead a reasonable person to expect the defendant to take precautions to prevent harm to others.
For example, a reasonable person expects a store to not leave wet spots unmarked after mopping. If someone slipped on an unmarked wet area in a store, most likely the business would be liable. Note that no one intended harm in this scenario, yet someone was hurt due to an omission.
Depending on the nature of the defendant's activities at the time, this can rise to the level of strict liability. In such cases, the defendant is liable, no matter how intentional or unintentional their actions were. Strict liability usually applies in cases where society wants to curb high-risk activities. Licensed work with explosives or chemicals, for example, falls under strict liability.
Duty of Care
A wrongful death lawyer is likely to make the fine distinction between someone who is liable versus responsible. What makes a responsible person liable for an incident is a duty of care. This is a presumption that circumstances require someone to prevent harm.
If you wash the floor in your kitchen, there often isn't a duty to prevent others from slipping in the wet spot. As long as you didn't invite a stranger to your house, you're probably not liable if something happens to them.
The closer the space gets to the public sphere, though, the more likely there is a duty of care. For example, depending on the laws in your municipality, you may have a duty to keep a sidewalk attached to your property clear.
Proximate Cause
There are scenarios where a defendant could act consciously and recklessly without incurring liability. To be liable, a person's conduct or omissions must be the proximate cause of the death of another. If a victim had a fatal medical episode that was wholly unrelated to a defendant's conduct, that might be ruled the proximate cause. For a defendant to be liable, the evidence must indicate their conduct was likely what led to the death.
Share7 April 2021
