When someone dies because of another party’s carelessness, the family can sue for wrongful death. But what happens if the person who died was partly to blame for the accident? That is where comparative fault comes in. It is a legal rule that can reduce or even wipe out the money the family receives. You need to understand this before you assume a lawsuit will bring in a big payout.
Comparative fault means the court looks at the actions of everyone involved in the incident and assigns a percentage of blame to each. If the deceased person was speeding when they were hit by a drunk driver, the court might say the deceased was 30 percent at fault. The drunk driver gets 70 percent. In a wrongful death claim, the family’s recovery is reduced by the deceased’s share of fault. So if the case is worth $100,000 and the deceased was 30 percent at fault, the family only gets $70,000. That is the basic idea. But not every state applies it the same way.
There are two main types of comparative fault. The first is called pure comparative fault. Under this system, a family can recover money even if the deceased was 99 percent at fault. They just get that 1 percent. Only a few states use pure comparative fault, including California and Florida. The second type is modified comparative fault. This is more common. Under modified rules, the family can recover only if the deceased’s fault is below a certain threshold. In most modified states, that threshold is 50 percent. If the deceased is 50 percent or more at fault, the family gets nothing. In a few states, the threshold is 51 percent. That means the deceased can be up to 50 percent at fault and still recover, but at 51 percent or higher, recovery is barred.
The difference between a 49 percent and a 50 percent finding can be the difference between a settlement and an empty courtroom. Juries often have to decide these percentages after hearing hours of evidence about who did what. They look at things like speeding, distraction, failure to yield, ignoring traffic signals, or even not wearing a seatbelt. Yes, not wearing a seatbelt can count as fault in a wrongful death case. If the person died in a crash and was not buckled up, the defense will argue that part of the death was self-inflicted. The jury may agree and reduce the award.
You also need to know that comparative fault does not just apply to the deceased person. It can apply to multiple defendants too. Say a pedestrian is killed by a delivery truck driver who ran a red light. But the trucking company failed to maintain the brakes, and the city had a malfunctioning traffic signal. The jury may split fault among the driver, the company, and the city, as well as the pedestrian if they were jaywalking. The family can collect only the total damages, but the percentages get sorted out among the defendants. Some defendants might get stuck paying more than their share, and then they can sue the others for contribution. That is messy, but it is how the law handles multiple causes.
One critical thing to remember: comparative fault is a civil concept. It has nothing to do with criminal charges. A driver can be criminally prosecuted for vehicular manslaughter and still face a wrongful death suit. The criminal case is about punishment. The civil case is about money. And in the civil case, the defense will bring up every bad choice the deceased made to reduce that money. Expect the deceased’s character and habits to get picked apart. Texting while driving, drinking, not using a crosswalk, ignoring a warning sign – all of that goes on the table.
What can the family do? First, hire a lawyer who knows how to present the deceased’s actions in the best light. The lawyer will argue that the deceased’s conduct was not the cause of the death, or that the other side had the last clear chance to avoid the accident. Many states have a rule called “last clear chance” that can minimize the deceased’s fault if the defendant could have avoided the crash but did not. Second, gather evidence early. Dashcam footage, phone records, and eyewitness statements can turn the percentage in your favor. Third, be realistic. If the deceased clearly ran a red light, you are not walking away with a full verdict. Know your state’s comparative fault rule before you file.
The bottom line is this: wrongful death liability is not a simple yes or no. It is a question of degree. The family walks into court carrying the deceased’s mistakes alongside the defendant’s. If the deceased’s share of fault crosses the threshold, there is no recovery at all. That is harsh. But it is the law. If you are considering a wrongful death claim, find out what your state’s threshold is, and prepare for the fight over percentages. That fight often decides the entire case.
