When you are the aggrieved party, it’s easy to blame a defendant. That person has been negligent, causing the demise or the injury of a loved one. A wrongful death lawyer in Los Angeles can also help you defend and win the case.
Determining negligence, however, is difficult. It becomes even more confusing when you consider state law. For instance, California practices comparative negligence. It means the state also recognizes the respondent’s participation in the injury or death.
This type of negligence is also deemed “pure” in California. The state doesn’t set a maximum cap on such involvement, unlike others. Your loved one might be 95% responsible, and yet the law still allows you to file a wrongful death claim.
To help you assess the degree of negligence, you need to know its elements.
1. Duty
It focuses on the fundamental question: does the defendant have a duty to the injured or the deceased? It tries to establish any relationship, and whether such connection demands the defendant must exercise caution.
An example is when an old man stumbled into a road crack, fell, and eventually died due to head trauma. The heirs might not come after the property owner if they’re not in charge of the maintenance of such a road.
2. Breach of Duty
It’s not enough that the defendant must exercise the duty of care. The respondent also has to prove that the other party failed to fulfill their obligation. This then resulted in the injury or death of a person.
Using the same example above, the heirs can run after the local council or county if they’re responsible for road maintenance. It can be a different story if the council has not been negligent in fixing such a road.
3. Cause in Fact
Others call this the actual cause. This element means that the breach of duty is directly responsible for the injury or death. In here, the plaintiff or the heirs if the person hurt is already deceased would have to prove that:
- The injury or death wouldn’t have happened if not for the negligence of the defendant.
- They wouldn’t have died or get injured if the incident didn’t occur.
On the defendant’s side, they can argue that the injury or death will still have happened even if the accident didn’t occur. Using the same example, the defendant might say that given the poor man’s old age, he will still fall and hit his head someplace else.
This is a complex but critical part of proving negligence. You have to work closely with your wrongful death lawyer to strengthen your case.
4. Proximate Cause
This is another type of cause, but this one focuses on the outcome of the incident. It explains that the injury or death is the foreseeable or the likely result of the actual cause or the breach of duty.
When you want to file a wrongful death lawsuit, you need to prove negligence. To show it, it should have all of these elements. Figuring out the answers to each of these four elements is not easy. You are more likely to succeed when you have an expert guiding you.
