The first step toward getting compensation after the death of a loved one through someone else’s negligent or intentional actions is to figure out who bears legal responsibility, or liability, for the wrongful death. It’s important to identify the right people whether you make an insurance claim or file a lawsuit. An insurance company won’t settle a claim if the person the company ensures doesn’t bear liability for the events that resulted in your loved one’s death. Likewise, a lawsuit would be dismissed if the wrong person were sued.
Investigation Phase for Determining Liability
Before settlement negotiations are attempted or a lawsuit is filed, your attorney most likely will conduct an investigation to gather all of the information and evidence necessary to determine liability. Your Illinois wrongful death lawyer will want to present as strong an argument as is possible that the person you say caused your family member’s death actually did cause it and is legally responsible.
That will involve combing through not only the facts of the accident or malpractice that resulted in the wrongful death but also the intimate details of your family’s financial and personal life. The investigation most likely will involve finding and interviewing witnesses, getting copies of accident reports, autopsy reports, medical records, and repair estimates if the death was caused by a car accident. It also likely will involve consulting with experts who can testify that the accident or malpractice caused your loved one’s death.
Once it’s determined who bears legal responsibility for the death, your lawyer will identify whether that person has an insurance policy that may compensate you for your loss. Usually, a settlement demand is made to the liable person’s insurance carrier or the insurance company’s lawyer. The demand often is in the form of a letter that lays out the argument why that person is liable and stating an amount that you should be compensated. The demand often will include documents that support your claim.
The vast majority of cases settle without having to go to court. Some settle without a lawsuit being filed, but many will settle after a lawsuit is filed and before a case goes to trial.
Proving Liability in Court
If a wrongful death lawsuit is filed and goes to trial, it’s your responsibility to prove that it was more likely than not — a standard called “preponderance of the evidence” — that your claim is true. Your case generally will break down to proving a few things:
- The person you’re suing had a duty to the person who died
- The person you’re suing breached that duty
- You suffered damages
- The person’s breach of duty caused the damages you’ve suffered
Duty, breach, and causation are the parts that add up to liability. You have to prove all three for a judge or jury to find in your favor. Then you have to prove damages to be awarded compensation.
Generally speaking, people have a duty of reasonable care not to do things that harm other people or put others at a foreseeable risk of harm. For example, if you run a red light, you should know that you’re risking hitting another car and injuring the driver. If you run the red light unintentionally or because your brakes cut out, you may be deemed negligent because you did something that put other people at risk of harm. You have a duty to behave in a way that’s reasonable. When you either do something that’s unreasonable — or fail to do something reasonable — that’s the breach part.
In a medical malpractice case, the duty is the customary standard of care for the medical service provided. Malpractice cases involve proving the medical provider either did something or failed to do something that deviated from the accepted way your loved one’s medical care should have been handled.
Causation is an important part of liability. It boils down to what is known as the “but for” test, which essentially is proving that but for the actions of the person you’re suing, the damages you’ve incurred wouldn’t have happened. The negligent or intentional actions of the person you’re suing have to have substantially contributed to the wrongful death.
Sometimes you might have to sue multiple people, and it may be clear that one of them caused the death, but you don’t know whom. In that case, the burden shifts to the people being sued to prove which one of them is at fault, or else a judge or jury may find them all at fault. This is a principle called alternative liability.