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How Do You Prove Wrongful Death

We recognize that filing a wrongful death claim is tremendously stressful. You are still grieving the loss of your loved one and do not want to add more to your plate. The attorneys at Gerling Law can protect your rights and fight for you while you focus on your family. While we realize nothing can bring your loved one back, a wrongful death lawsuit can help your family get on firmer financial footing as you move forward. As you begin the process of filing suit, you may wonder, How do you prove wrongful death? 

How Is Wrongful Death Defined?

Before discussing how to prove wrongful death, it is critical to know what a wrongful death claim is. A wrongful death claim is a civil action filed against someone who may be responsible for the death of your loved one. Proving a wrongful death case requires that you prove your loved one died due to someone else’s negligent or intentional wrongful acts.

Civil lawsuits allow plaintiffs to recover compensation for the financial losses and emotional harms they’ve suffered. This is different from a criminal case. In a criminal case, the defendant will be subject to potential fines or imprisonment. A defendant in a wrongful death lawsuit will not face the possibility of prison time. 

Elements to Prove Wrongful Death

There are four main elements you must establish to prove a wrongful death. These are called: duty of care, breach of duty, causation, and damages.

Duty of Care

First, your attorney will help show that the defendant owed the decedent a duty of care. This means that the defendant needed to act as a reasonable, prudent person would have acted in the same circumstances. 

One illustration would be a severe car collision that caused the death of your loved one. If the defendant was driving on the road, they had a duty of care that required them to obey traffic laws and to pay attention to the road. They had an obligation, in other words, to look out for the safety of other drivers and pedestrians.

Breach of Duty

A breach of duty means that the defendant’s conduct fell below the required standard of care. In other words, the defendant had an obligation and responsibility to act as a reasonable, prudent person and failed to do so. For example, all drivers have a duty to pay attention to the road and other drivers. If someone was driving while distracted, such as driving while texting, they likely breached their duty of care.


Causation is the third element you must show to successfully bring a wrongful death claim. Causation means you have to show the defendant’s breach of duty caused your loved one’s death. Typically, causation is established by using the “but-for” test. When applying this test, you must show that, but for the defendant’s breach of duty, the wrongful death would not have occurred. In other words, you must show that if the defendant had not breached their duty of care, then your loved one’s death would not have happened. For example, if you show that had the defendant not been texting while driving, then your loved one’s death would not have occurred, you have likely established causation. 


Lastly, you will need to have damages to file a wrongful death claim. Damages include tangible losses as well as intangible losses. Some examples of damages might be funeral and burial expenses, medical bills that your family member incurred before they died, or the emotional pain you are experiencing because you can no longer enjoy your loved one’s companionship. The specific damages that might be available depend on the state in which you file your claim.

Keep in mind that all four of these elements need to be proved for your wrongful death claim to succeed. The experienced wrongful death attorneys at Gerling Law can help you identify who might be liable for your loved one’s death and gather evidence that can help make your claim as strong as it can be. 

The Burden of Proof in Wrongful Death Lawsuits

When you choose to file a wrongful death suit, you have to meet the appropriate burden of proof. If you meet the burden of proof, then you have shown the other party is responsible for your damages.

In every state, the plaintiff in a civil case usually has to prove the defendant’s conduct caused their losses by a preponderance of the evidence. In a wrongful death claim, this means you must show it is more likely than not that the defendant’s conduct caused your loved one’s death. 

This standard is less onerous than the “beyond a reasonable doubt” standard that applies to criminal prosecutions. However, your wrongful death claim must still be supported by strong evidence that establishes the four elements discussed above. An experienced wrongful death attorney at Gerling Law can help you better understand how to prove wrongful death.  

Who Can Bring a Wrongful Death Claim?

State law provides for who can file a wrongful death claim. Some states only allow a personal representative of the decedent’s estate to file a wrongful death lawsuit, but other states allow certain family members to file a lawsuit. 


Under Indiana law, only the personal representative can file a wrongful death claim on behalf of a deceased adult’s estate. However, if the decedent was a child, then the parents can file a wrongful death claim.


Likewise, in Kentucky, only personal representatives of the deceased’s estate can usually bring a claim for wrongful death. There are some exceptions, however, that our experienced attorneys can discuss with you.

In either state, if the deceased did not select a personal representative, the court can appoint one.

How Our Lawyers Can Help

At Gerling Law, we have decades of experience helping families get justice for their loved one’s death. Our team of experienced lawyers serves clients in Indiana, Kentucky, and Illinois. With over $500 million recovered for clients in the tri-state area, we know what it takes to build and argue a winning case. Contact us today to schedule a free case review.

Author Photo

Gayle Gerling Pettinga

Born and raised in Evansville, Gayle is a respected, experienced lawyer and a valued community leader. She graduated near the top of her class at Indiana University’s prestigious Maurer School of Law. She’s practiced law with one of the largest firms in Indianapolis as well as one of the largest pharmaceutical companies in the world. And that means she knows how big law firms and big companies think and how they operate – and she will put that knowledge to work for you.

Gayle has received numerous awards and honors including Martindale-Hubbell — Peer Review Rated: AV®, American Institute of Personal Injury Attorneys 10 Best Attorneys in Indiana for Exceptional and Outstanding Client Service, and YWCA Evansville 100 Years, 100 Women Honoree, 2011.

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