Comparative Fault in a Wrongful Death Case

Dealing with a wrongful death case can be difficult for a grieving family member. The last thing you may want to do is learn Colorado’s wrongful death laws and navigate the legal process – especially if your case involves defenses such as comparative negligence. You may need a qualified wrongful death attorney in Denver to overcome the challenges of your specific case.

What Is Comparative Fault?

Comparative fault, also called comparative negligence, is a legal doctrine that can be used in civil cases to allocate a portion of fault to more than one party. In a wrongful death claim, it can be used to argue that the deceased individual (decedent) contributed to his or her own death through an act of negligence or recklessness. Negligence in law refers to the failure to act with reasonable care. If the decedent’s comparative fault can be proven, this can reduce surviving family members’ financial recovery.

What Is Colorado’s Comparative Fault or Negligence Law?

Colorado Revised Statute § 13-21-111 states: “Contributory negligence shall not bar recovery in any action…to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage, or death recovery is made.”

Under the state’s comparative negligence law, an injured or deceased accident victim can still qualify for financial compensation from an at-fault party if the victim contributed in some way to the incident. However, the victim’s degree of fault must be less than the defendant’s to remain eligible for a monetary recovery; in other words, a plaintiff’s ability to recover is capped at a threshold of 51 percent.

How Comparative Fault Works in a Wrongful Death Case

If the comparative fault doctrine is introduced in a wrongful death case, it can lead to challenges that can significantly affect the outcome of the case. Although each wrongful death claim is unique, this is generally what you can expect in this situation:

1. The accident will be carefully investigated to examine the circumstances leading up to the fatal injury or illness. 
2. The liable or responsible parties will be identified and a percentage of fault will be allocated to each by the insurance company (or a jury).
3. Multiple parties, potentially including the decedent, will be attributed a portion of the fault using evidence such as expert testimony, accident reports, medical records and witness statements.
4. An insurance company or the courts will reduce financial compensation awarded to surviving beneficiaries by the percentage of fault attributed to the decedent (30 percent of fault, for example, would reduce a $100,000 settlement to $70,000).
5. If the decedent is given the majority share of fault, surviving family members will not be able to recover any financial compensation at all under Colorado law.

It is important to hire a Denver personal injury attorney if your family’s wrongful death claim involves the comparative negligence doctrine. If someone is attempting to blame your deceased loved one for the incident, even in part, this can risk your claim. An attorney will be your loved one’s voice in the civil justice system. 

Contact us today at Fang Accident Lawyers for a free consultation if you have questions or concerns regarding a specific claim.