If your loved one is killed in a car accident, you can file a wrongful death lawsuit and win the associated damages. That is how it should be, but expect the defendant to do everything to try and escape liability. Here are some of the defenses they may use:
Your Loved One Were Engaged In a Criminal Act
The defendant can claim that your loved one was engaged in an unlawful act at the time of the accident and that they wouldn't have died if they weren't engaged in that criminal act. You won't be receiving any wrongful death settlement if the defendant succeeds with the defense. The state allows this defense because they don't want to reward wrongful acts.
Consider an example where your spouse killed while fleeing from the police after being stopped for drug running. In this case, the deceased was involved in at least two criminal acts – drug running and evading arrest. Since the government doesn't want to reward you for your spouse's criminal acts, you won't get the compensation if the criminal acts are proven.
Your Loved One Assumed the Risk That Caused Their Death
The assumption of risk defense alleges that your loved one knowingly exposed themselves to the danger that ended up killing them; in essence, the defendant is saying that your loved one "knew what they were getting into."
Assumed risk can either be express or implied. Express assumed risk occurs when a person signs a release or waiver stating that they are aware of the danger of the act they are about to do but are willing to proceed with it anyway. Implied assumption of risk applies in situations where a person knows or should know (meaning it is widely known) that something is dangerous, but proceeds to do it anyway.
For example, if your spouse is a race driver, then they know (or should know) the inherent dangers associated with racing. Most race drivers also have to sign waivers excluding the race organizers from liability in case of accidents. In either case, you may find it difficult to win a wrongful death suit if your spouse died in an accident while racing.
Your Loved One Contributed To the Tragic Accident
The third example of a viable defense hinges on contributory negligence laws. According to these laws, a person should not be compensated for their damages if they contributed to the incident that caused the damages. A good example is if your spouse is killed when they are driving the wrong way; in this case, the defendant can argue that driving the wrong way contributed to the crash and you shouldn't get the wrongful death damages. Many people consider contributory negligence laws unfair, which is why most states don't use them.
Wrongful death damages can run into millions of dollars. Expect the defendant to put up a spirited defense. This is a classic case of a lawsuit that is best handled by an experienced attorney. If you're interested in finding more, visit a site such as http://www.putnamlieb.com.