When your loved one dies because of the wrongful act of another person, you have the right to seek compensation for all your losses. It can be a complicated legal process, so it’s essential that you have an experienced and proven attorney to carefully guide you through the process. As a practical matter, unless you can show that the defendant intentionally took the life of your loved one, your lawsuit will be based on a legal theory of negligence.
Proving Negligence in a Wrongful Death Claim
As the person bringing the civil suit for damages (the “plaintiff,” in legal terms), you will have the burden of proof. That means that you must prove all the elements necessary to persuade the court that defendant’s behavior failed to meet the accepted standard. In New Jersey, in any personal injury claim (a wrongful death action is a type of personal injury claim), the burden of proof is “a preponderance of the evidence.” Essentially, that means that you must demonstrate that your version of the facts is more likely than the defendant’s version of the facts. Compare that with the standard of proof in a criminal case—beyond a reasonable doubt—it’s clear that burden of proof is significantly lower in a wrongful death lawsuit.
To successfully argue a wrongful death claim, you must prove three things:
• That the defendant breached the “duty of care”—Typically, the jury identifies what would be considered as reasonable conduct under the circumstances, and will also determine whether the defendant’s actions fell short of that duty of care.
• That the breach caused the accident in which your loved one died—There are two types of causation—actual cause and proximate cause. Actual cause simply says that the accident would not have occurred “but for” the breach of the duty of care. Proximate cause, however, looks at whether or not the accident was reasonably foreseeable as a consequence of the breach of the duty of care.
• That you have suffered actual loss because of the death of your loved one—You must show that you had actual losses—emotional losses are not recoverable in a wrongful death lawsuit in New Jersey. You can recover for lost support, companionship or consortium, the loss of services provided in the home, and for any medical or funeral expenses incurred.
Contact Mallon & Tranger
We offer a free initial consultation to people in New Jersey who have lost a loved one because of the wrongful acts of another person. To set up a meeting, contact us online or call us at 732-410-6094 (toll free at 877-320-0692) for an appointment. We have offices in Freehold, Toms River and Point Pleasant.