Partly at Fault Wrongful Death Claims

When a family first talks to an insurance adjuster after a fatal crash or fall, one of the early questions is often about the person who died: Were they speeding? Were they wearing a seat belt? Were they in the crosswalk? Those questions matter, but under California law they go to how much the family recovers, not whether it can bring a claim at all. Our wrongful death page explains the claim itself; this guide explains how the person's own conduct is weighed.

The rules come from the Judicial Council's civil jury instructions, mainly CACI 405, 406 and 407, and from Civil Code 1431.2. Court decisions are mentioned only as the Judicial Council quotes them in those instructions.

How does comparative fault work in a death case, step by step?

The defense raises it. The defendant claims that the negligence of the person who died contributed to the death. The instruction on this point should not be given unless there is evidence that the person was negligent (CACI 407, Directions for Use).
The defense must prove two things. First, that the person who died was negligent. Second, that this negligence was a substantial factor in causing the death (CACI 407).
The jury finds the family's total damages. It does this separately, without considering anyone's percentage of responsibility (CACI 406).
The jury assigns percentages. Every person whose fault was a substantial factor, including the person who died and people who are not in the lawsuit, gets a percentage, and the percentages must total 100 percent (CACI 406).
The judge does the math. The family's damages are reduced by the percentage assigned to the person who died. The instruction tells jurors that the judge will calculate the actual reduction (CACI 407).

What arguments about the person who died come up, and what must be shown?

What the defense says	What the defense has to show	Source
The person was careless: speeding, distracted, crossing against a signal, climbing without a harness	That the person was negligent and that the negligence was a substantial factor in causing the death	CACI 407
The person was not wearing a seat belt	That a working belt was available, a reasonably careful person would have used it, the person did not, and the injuries would have been avoided or less severe with it	CACI 712
Someone else, not in the lawsuit, was also to blame	That the other person was negligent or at fault and that this was a substantial factor in causing the harm	CACI 406
In a medical case, the patient's own conduct before treatment caused the condition	The Judicial Council's notes quote a decision holding that a patient's negligence before treatment does not warrant a comparative negligence instruction	CACI 405, Sources and Authority
The person provoked or contributed to an intentional attack	The notes quote a California Supreme Court decision that Civil Code 1431.2 does not reduce an intentional wrongdoer's share of noneconomic damages because of others' negligence, including the plaintiff's	CACI 406, Sources and Authority

Each of these is a defense the defendant must prove. A suggestion in a letter from an adjuster is not a finding of fault.

Who has to prove that the person who died was at fault?

The defendant does. Under CACI 407 the defendant "must prove" both negligence and causation, and among the authorities listed under CACI 405 the Judicial Council quotes a decision stating that, generally, a defendant has the burden of establishing that some nonzero percentage of fault belongs to the plaintiff, other defendants or nonparties. The family does not have to prove that the person who died was careful.

The law also starts from the idea that people may rely on others to follow the rules. CACI 411 tells jurors that every person has a right to expect that every other person will use reasonable care, unless they know or should know that the other person will not. A driver who had the green light, or a pedestrian in a marked crosswalk, did not have to assume someone would run the signal. For the pedestrian rules in particular, see when a driver must yield to a pedestrian.

Fault is decided on the evidence: vehicle damage, video, phone and vehicle data, witness accounts, the crash report and expert reconstruction. Getting the report early helps; see how to get a crash report in Sonoma County.

What if our loved one was mostly at fault?

The claim can still go forward. California replaced the old "all or nothing" rule, under which any negligence by the injured person barred recovery, with comparative negligence. The Judicial Council quotes, under CACI 405, the California Supreme Court's 1975 decision adopting comparative negligence, and a later decision explaining that the injured person's own negligence is now treated "not as a bar" to recovery but as a factor in measuring the amount.

The starting point is the general negligence statute. Civil Code 1714(a) makes everyone responsible for injuries caused by a lack of ordinary care, "except so far as" the injured person brought the injury on themselves by a lack of ordinary care. Under comparative fault, that exception works as a reduction, measured in percentages, rather than a bar.

The instructions set no cutoff. Whether the person who died is found 10 percent or 70 percent responsible, the award is reduced by that percentage, and the remaining share is paid by those responsible for it. A large share of fault makes the claim smaller, and it can change whether a lawsuit makes sense, but it does not by itself end the claim.

Does the person's fault reduce the whole award?

It reduces the family's wrongful death damages. Under CACI 407 the plaintiff's damages are reduced by the percentage of the decedent's responsibility, and the Judicial Council quotes two decisions on this: one holding that principles of comparative fault support apportioning liability among everyone responsible, "including the decedent," whether for personal injury or wrongful death, and one stating that in wrongful death actions the fault of the decedent is attributed to the surviving heirs, whose recovery is offset by the same percentage.

What the family can recover in the first place is set by CACI 3921: lost support, gifts or benefits, household services, funeral and burial expenses, and the loss of the person's love, companionship, care and moral support. The reduction applies to that total. Our guide on what a family can recover in a wrongful death case covers each item. When the person who died was retired or had no paycheck, see whether a claim has value without income.

What if more than one other person was also at fault?

Then the jury divides responsibility among everyone, including the person who died, and Civil Code 1431.2 decides how the defendants pay. Each defendant pays only its own percentage of noneconomic damages, such as the loss of companionship, while economic damages such as funeral costs and lost support can be collected from any liable defendant. Our guide on who pays when several drivers caused a crash walks through that math, including what happens when one of them settles early.

Sometimes the person most responsible also died in the crash. That changes who is sued and shortens the deadline; see what happens when the person who caused the death also died.

What changes the answer?

A seat belt. Not wearing a belt is not automatically a share of fault. The defense must prove each part of CACI 712, including that the injuries would have been avoided or less severe with the belt, and the Judicial Council's directions note that the seat belt statute applies only to people 16 or older. Our guide on claims when someone was not wearing a seat belt explains the defense.

An intentional act. When the death was caused by an assault, the notes to CACI 406 quote the California Supreme Court holding that Civil Code 1431.2(a) does not reduce an intentional wrongdoer's liability for noneconomic damages based on others' negligence. A business whose poor security allowed the attack is a separate question; see when a business is responsible for an assault on its property.

A medical death. The notes to CACI 405 quote a decision that a patient's negligence before treatment, the conduct that created the condition the care was meant to treat, is not weighed against the patient.

An employer. When an employer is liable only because its employee was at fault, the notes to CACI 405 quote a decision that the employer's share corresponds to the share the jury gives the employee.

A public road or vehicle. A city, county or the State can share fault for a dangerous condition, but the family must first present a written claim within six months (Government Code 911.2). Our guide on filing a claim against a city, county or the State covers that step.

What could this look like? An example

For example, imagine a 52-year-old man riding his motorcycle on a two-lane highway in west Sonoma County. A pickup driver turns left in front of him, and he is killed. The pickup's insurer points to a witness who says he was going about 10 miles per hour over the limit, and argues that he could have stopped in time.

His wife and two adult children bring the wrongful death claim. The insurer must prove that his speed was negligent and that it was a substantial factor in causing the death. At trial, the jury first finds the family's total damages, say $1,000,000, without thinking about percentages. It then assigns 80 percent of the responsibility to the pickup driver and 20 percent to him. The judge reduces the award by 20 percent, to $800,000, and the court divides that amount among his wife and children. Had the insurer failed to prove that the speed made a difference, there would be no reduction at all. This example is made up to show how the rules fit together; it says nothing about any real case.

What mistakes do families make?

Assuming the claim is over because the adjuster says their loved one was partly to blame.
Giving a recorded statement that guesses about speed, lanes or timing before the evidence is gathered.
Letting the scene, the vehicle or the phone be lost before anyone has looked at them.
Accepting a fault percentage offered in settlement talks as if it were a finding.
Waiting while fault is argued about, when the deadline keeps running.

What should we do this week?

Request the crash or incident report and write down the report number.
Ask that the vehicles, any helmet and any phone be kept, not repaired or scrapped.
List witnesses and nearby businesses or homes that may have video, and ask them to save it.
Decline recorded statements until you have advice.
Keep every bill, including the funeral bills; see who pays funeral costs after a wrongful death.
Mark the deadline. Generally two years from the death, and six months for a claim against a public entity; see how long a family has to file a wrongful death claim.

Frequently asked questions

Does the jury know that its percentage will reduce the award?

The jury finds the total damages first, without considering anyone's percentage (CACI 406). It then assigns percentages, and the judge calculates the reduction (CACI 407).

Can the person who died be blamed even if they cannot tell their side?

Yes, but only on evidence. The instruction should not be given without evidence that the person was negligent, and the defendant carries the burden of proof (CACI 407).

Does the person's fault matter if the other driver was drunk?

It can still be weighed if the defendant proves it, because the comparison covers everyone whose fault was a substantial factor (CACI 406). The other driver's intoxication goes into the same comparison. If a bar or winery served that driver, see whether a bar or winery can be sued.

Can someone who is not part of the lawsuit be given a share of fault?

Yes. Percentages can be assigned to people who are not in the case, including those who settled earlier, and a defendant's share of noneconomic damages is measured against all fault, not only the fault of those in court, as the notes to CACI 406 explain.

Does the person's share of fault affect the deadline?

No. The usual deadline is still generally two years from the death (Code of Civil Procedure 335.1), and six months for a written claim to a public entity (Government Code 911.2).

Where would a Sonoma County case be heard?

Unlimited civil cases are heard in Santa Rosa; see what to expect at Sonoma County Superior Court. Our Sonoma County personal injury page lists the local offices and agencies involved after a death.

If an insurer is blaming your loved one for their own death, contact Young Law Group today at (707) 343-0556 or through our contact page for a free and confidential consultation.

Can we still bring a wrongful death claim if our loved one was partly at fault?