Negligence and Fault in Wrongful Death Cases

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There is no easy way to lose a loved one but it can be even worse if the death was caused by another person's wrongful actions. The deceased loved one is not around to fight back against the person who caused the accident. Instead, it is up to the surviving family members to hold the responsible parties accountable for their actions.

If you are suffering the sudden loss of your loved one due to someone else's negligence in Washington or Oregon, the attorneys at Schauermann Thayer may be able to help you seek justice by filing a wrongful death lawsuit against the person who caused your loved one's death.

What is a Wrongful Death Action?

When you suffer the death of a loved one or family member due to the wrongful actions of another, you may be entitled to recover financial compensation from the at-fault individual or entity by filing a wrongful death action.

For example, if your loved one was killed in a car accident at the hands of an individual who was driving under the influence, the at-fault driver could be the defendant in a wrongful death action. Similarly, if your family member was killed by a dangerous product that malfunctioned, the manufacturer of the product might be liable in a wrongful death action.

The purpose of a wrongful death action is to award compensation for the companionship lost due to the death of your loved one, as well as to help offset any financial hardship that you may be experiencing.

The course of action in a wrongful death case is largely determined by what caused your loved one's death. A person's actions do not have to be intentional to be wrongful; a simple mistake can still cause an individual to be liable.

Wrongful Death Caused by Negligence

Oftentimes, an individual's death occurs from another person's negligence. Negligence is the failure to behave with a level of care that a reasonable person would exercise in a similar circumstance. In other words, negligence is simply a mistake made by another person. The fact that an individual may not have meant to cause your loved one's death does not relieve him or her from potential liability.

In order to be successful in a wrongful death claim stemming from the negligent actions of an individual, each of the four elements of negligence will need to be met: duty, breach, causation, and damages.


In order for an individual to be found liable for your loved one's death, your attorney must successfully prove that the individual owed a "duty of care" to your loved one. A duty of care is simply a duty to act in a way that would keep your loved one safe or to abstain from acting in a way that would potentially harm your loved one.

Duty is determined by what a "reasonable person" would do under the same or similar circumstances. The law requires all persons to act in a reasonably careful manner to avoid foreseeable harm to others. -in other words, an individual maintains a duty to your loved one if a reasonable person would find that such a duty exists in the circumstances your loved one was in when he or she was killed.

For example, your loved one was killed in a car accident involving a driver who was driving well above the speed limit and was unable to stop. Speed limits exist for a reason--to protect drivers from potentially harmful or fatal accidents. Drivers, then, have a duty to others on the road to obey the speed limit in order to prevent potential accidents caused by speeding.

Breach of Duty

In order to be found negligent, it must be determined that the individual who caused your loved one's death not only maintained a duty to your loved one but that he or she breached that duty. In the speeding example above, it must be proven not only that the individual owed a duty not to speed on the roads, but that he or she was speeding at the time of your loved one's accident. If it can be proven that someone breached a duty to your loved one, then the first two elements of negligence are met.

Causation (Fault)

It's not enough that someone breached a duty to your loved one--to be found negligent, an individual's breach of duty to your loved one must have caused his or her death. In other words, another way to think of causation is fault. To succeed in a wrongful death action, your attorney must be able to prove that it was that individual's fault that your loved one died.

Two types of causation exist in the world of negligence: cause in fact and proximate cause. Cause, in fact, means that the individual was the actual cause of your loved one's death; but for the individual's actions, your loved one would not have been killed. Proximate cause, on the other hand, deals with the individual's level of responsibility in the situation which caused your loved one's death. The key to proximate cause is foreseeability--if it was foreseeable that the individual's actions could have caused your loved one's death, then he or she will be found to be the proximate cause of the death.

Returning to the speeding scenario, if your loved one would not have died had it not been for the at-fault individual speeding and causing an accident, then the individual's actions will be found to be the cause in fact of your loved one's death. If it was foreseeable that speeding in such a situation could cause harm to your loved one, then the individual will also be found to be the proximate cause of your loved one's death.


In order to be found negligent, an individual must be able to prove that he or she was damaged by the at-fault party's wrongful actions. This element is simple to prove in a wrongful death case, as the "damage" that was suffered was the untimely death of your loved one.

If all four elements of negligence--duty, breach, causation, and damages--are met, then the individual who is responsible for your loved one's death will likely be found liable for the death, and a wrongful death lawsuit may be successful.

How Much Time Do I Have to File a Wrongful Death Action?

Each state sets a law--otherwise known as a "statute of limitations"--dictating the amount of time an individual has to file a wrongful death action against an individual who caused their loved one's death. In both Washington and Oregon, a survivor can file a wrongful death action up to three years from the time of their loved one's death. While this may seem like a lengthy period of time, it could be important to speak with a wrongful death attorney as soon as possible following your loved one's death.

While filing a lawsuit may be the furthest thing from your mind following the untimely death of your loved one, wrongful death actions can be very complicated and take quite a while to frame. After the statute of limitations has passed, recovery is barred. It is not advisable to wait too long before an attorney can investigate.

What Compensation Can I Recover from a Successful Wrongful Death Lawsuit?

A wrongful death action can provide financial compensation--known in the legal world as "damages"--for a variety of negative situations which you have encountered following your loved one's death. A successful wrongful death lawsuit can provide damages for one or more of the following:

  • Medical expenses: If your loved one was taken to the hospital before he or she passed away, then the estate may be saddled with burdensome medical expenses. Unfortunately, these bills may not disappear simply because the procedures and treatments could not save your loved one. A wrongful death action can compensate you for medical bills that you face following the loss of your loved one.
  • Funeral expenses: An unexpected burial can take a huge financial toll on families--cremation and burials can cost thousands of dollars. This generally does not cover funeral arrangements, such as funeral services or flowers. A wrongful death action takes into account the financial burden which an unexpected burial can cause, and can compensate you for reasonable funeral and burial expenses which you incurred following the loss of your loved one.
  • Loss of income and loss of future earning capacity: If your loved one provided income to support your family, then you may find yourself struggling to stay afloat financially following his or her death. Even if you do not have a funeral or medical expenses to pay for, the loss of a source of income can cause devastating effects. A wrongful death lawsuit can seek compensation to make up for the loss of income which you face, and can even seek compensation for lost earning potential which your loved one could have had the chance to earn if he or she had not been killed.
  • Loss of consortium: The losses laid out above can be quantified: medical bills and funeral expenses can be calculated, and loss of income can be determined. There is no mathematical formula, however, to quantify the relationship with your loved one which you lost due to his or her untimely death. A spouse's love cannot be translated into a dollar figure, and there is no lump sum that can replace a parent's guidance to her children. While it's impossible to calculate a dollar amount to make up for the loss of love, companionship, and support following a death, a wrongful death action can take this form of loss into account, and will often provide compensation for this loss.
  • Punitive damages: In Oregon, a court or jury will find an individual's actions so heinous that it believes that the individual must be punished for his or her wrongdoings. In that instance, additional "punitive" damages may be awarded to the beneficiaries of a wrongful death lawsuit. Unlike the above-mentioned forms of compensation, which are meant to reimburse surviving family members, punitive damages are simply meant to punish the person who caused your loved one's death. In addition, they can be used to set an example to deter others from participating in similar actions in the future.

Struggling After the Wrongful Death of a Loved One? We Can Help

If you are struggling emotionally and financially following the death of a loved one or family member in Washington or Oregon, the team of attorneys at Schauermann Thayer is standing by to help. Through competent and compassionate representation, our attorneys have created a reputation of success in Washington and Oregon.

To learn more about the possible benefits of a wrongful death action, or to schedule a consultation with a member of our team of attorneys, fill out an online contact form or call (360) 695-4244 today. We're standing by to help you move forward following your loved one's death--all you have to do is call.

Experienced Attorneys

The attorneys at Schauermann Thayer handle personal injury, wrongful death, and insurance actions for clients throughout the Southwest Washington and Portland, Oregon area.


Schauermann Thayer is committed to answering your questions and addressing your concerns about potential personal injury and wrongful death cases in Washington and Oregon.

We offer free consultations and we’ll gladly discuss your circumstances with you at your convenience.