How To Prove Negligence in a Wrongful Death Case

If your family member recently passed away due to another person’s negligence, pursuing legal action may be the furthest thought from your mind. Alternatively, maybe a lawsuit is the only action you can think of to begin moving forward from this tragic loss. 

Either way, you have a right to seek compensation for wrongful death through an insurance claim, lawsuit, or both. As the plaintiff, you’ll be responsible for proving negligence, or showing that the defendant’s wrongdoing caused the accident that led to your loved one’s death. 

Knowing the ins and outs of proving negligence in a wrongful death case can help you prepare for the claims process.

Negligence vs. Strict Liability

Understanding the term “negligence” is the first step in proving negligence in your wrongful death claim. Many people confuse the concepts of negligence and strict liability. 

For a defendant to be negligent, they must have failed to take reasonable care to prevent an accident or injury. Negligence involves a level of fault — you can point to specific actions the defendant took or failed to take that directly caused the accident. 

Meanwhile, strict liability does not involve fault. A defendant can be strictly liable for damages in some cases without being negligent. Examples of parties that may be strictly liable for damages include:

  • The owner of a dog who bit someone
  • The manufacturer of a defective product
  • A person who created an abnormally dangerous condition, such as storing explosives in a multi-unit apartment building

Depending on your wrongful death case, you may only need to prove strict liability. But most wrongful death lawsuits require a level of negligence to be present. Your wrongful death attorney can evaluate the circumstances of your loved one’s death and help you understand what you’ll need to prove as you seek compensation. 

Proving the Four Elements of Negligence in a Wrongful Death Case

Proving negligence in a wrongful death case involves providing evidence of the four basic elements that define negligence. Your attorney will help you gather evidence to show all of the following elements to make your case.

Duty of Care

Your first step in proving negligence is showing that the defendant owed your loved one a duty of care. 

“Duty of care” is a general term for a person’s legal obligation to maintain the health and well-being of other people throughout their interactions with them. For example:

  • Medical professionals owe a duty of care to their patients. 
  • Property owners owe a duty of care to people they directly or indirectly invite to their property (and people who visit their property lawfully). 
  • Drivers owe a duty of care to other drivers and pedestrians on the roadway. 

The California court uses “Rowland factors” to determine duty of care, which include factors like the foreseeability of the accident and the moral blame for the defendant’s actions. 

Breach of Duty

Once you’ve established that the defendant owed your loved one a duty of care, you must show that they breached that duty. Generally, you’ll need to show that the defendant acted carelessly or recklessly or that they didn’t perform their duties to the standard other people reasonably would have in their shoes.

For example, in a car accident case, a defendant may have breached their duty of care if they:

  • Were intoxicated at the time of the accident
  • Were texting and driving
  • Fell asleep at the wheel
  • Were not paying attention to traffic

In each of these cases, the defendant did not execute the level of care necessary to maintain the well-being of those around them.


A person can breach their duty of care to another person without actually causing any damage. You’ll need to prove causation as one of the tenets of negligence in your wrongful death case.

Let’s say your loved one passed away from medical malpractice. You may be able to show that the physician did not run all of the proper diagnostic tests to find the severe condition your loved one was unknowingly suffering from. But you’ll also need to show that if the physician had discovered the condition, your loved one would not have died.

Sometimes, wrongful death happens from a combination of circumstances. A driver may have been at fault for an accident, but your loved one may have actually died due to a vehicle defect that prevented the airbag from deploying.

Evidence is crucial at this stage. Your attorney can help you gather medical records, video evidence, photos, witness testimonies, and any other evidence to prove that the defendant’s breach of duty caused your loved one’s accident.


As part of your case, you’ll need to show all of the quantifiable monetary losses your loved one and your family experienced from the defendant’s actions. These may include expenses related to your loved one’s death, such as:

  • Funeral costs
  • Burial expenses
  • Time off work to grieve
  • Lost earnings due to losing a member of the family

They may also include the medical expenses and physical damage your loved one experienced from the accident. 

Common Examples of Negligence in Wrongful Death Cases

You and your attorney can also point to similar wrongful death cases to support that the defendant in your case was negligent. Below are a few common examples of negligence in past cases:

  • Medical malpractice: A physician failing to provide the proper care to a patient may be negligent in their death. 
  • Vehicle accidents: The driver responsible for a car, motorcycle, truck, or bike accident is often negligent for injuries and deaths that occur. 
  • Premises liability accidents: Failing to mitigate hazards on a property, leading to a visitor’s death, is an example of property owner negligence. 

You Have the Burden of Proof 

In wrongful death cases, the party filing the claim or lawsuit has the burden of proof. Don’t risk losing out on thousands of dollars in damages; instead, work with a wrongful death attorney who has extensive experience.

Contact Khalil Law Group in Orange County, CA, today at 714-617-7870 to schedule a free consultation to discuss your wrongful death claim.

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