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Understanding Common Wrongful Death Defenses That Can Be Used Against You


Wrongful Death Defenses

A wrongful death lawsuit arises when a loved one has sustained a fatal injury as the result of someone else's negligence. The family members will choose to bring a wrongful death lawsuit so that they can recover damages for personal injuries as a result of their loved one dying due to the negligence of another person or company. Many people think that wrongful death claims are a kin to personal injury claims. While they are similar and are in the same legal family, wrongful death claims are different than personal injury claims in Arizona. Typically any personal injury lawyer who has the experience and expertise will be able to handle a wrongful death claim as well.

Although we only represent Plaintiff's since we only help those who have been injured in accidents or whose family wants to bring a wrongful death action, it is still important to understand the defenses that people can claim when they have a wrongful death case suit against them by another party. Since wrongful death cases and personal injuries cases are so closely related, there are common defenses in both types of case.

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Self-Defense

Self-defense is an old defense that allows someone to claim that they were just acting to protect themselves. They can claim that they were not in fact negligent but that felt they were in imminent danger or immediate harm. Even if the defendant were able to prove that they were in imminent danger, they still have to prove that their actions were reasonable to cause a fatal injury.

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Release Agreement

Often times injury occurs at a place or facility where the injured party has signed some type of release. Many defendants will point to the release that the injured party has signed. The Defendant often will use the signed release as a defense to being at fault for the fatal injury. Each state is different, but it is not automatic that a release will bar a person from bringing a wrongful death action in Arizona. There are different legal criteria that must be met for this defense to have any merit.

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Decedent's Involvement in an Unlawful Act

Another defense that some people may use is that the person who sustained the fatal injury was participating in an unlawful act. This is based on the presumption that our society does not want people to participate in unlawful acts and then later bring a claim for a wrongful death. As Phoenix wrongful death lawyers, we need to judge the facts of each case differently to see if we are able to help the family of the decedent.

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Assumption of Risk

This defense is where the decedent is said to have known that the participation in whatever activity would be so dangerous as to lead to imminent harm. An assumption of the risk defense is where the Defendant can prove that the decedent knew or should have known that they were participating in a dangerous activity. This is a defense that is not allowed to be used legally in every state.

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Contributory Negligence

Contributory negligence is a legal terminology. This again is not a defense available to be used against every decedent in every state. Depending on the state the wrongful death claim came about, it is important to speak to a lawyer in that state who is experienced in wrongful death law and understands the rules and regulations for this area of law.

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Comparative Negligence

Arizona is a pure comparative fault state which means that if the decedent is at fault for their own injury just 10% then the at fault party only would have to compensate the family of the decedent for 90% of the total claim. In others words, each party who is at fault is responsible for payment of their proportion of the total value of the claim. This law can be confusing and is widely used as a defense in the state. As we only handle claims for people who have been killed in auto accidents, motorcycle accidents, trucking accidents, slip and falls, nursing home abuse, or whatever the accident we have this defense used against us all the time in Arizona. Defense attorneys want to use this against innocent people who have been injured or who have wrongful death claims because it lowers the value of the decedent's total claim.

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Contact the Husband and Wife Law Team in Phoenix

The lawyer that you choose should understand the law for these types of claims. Even more important for winning your case is making sure that you hire the best attorney that you can find. Our attorneys at Breyer Law Offices, P.C. are experienced and understand the wrongful death laws. Mark Breyer is a certified specialist in wrongful death law and has handled many fatal injury claims for families. Call (602) 267-1280 for a free consultation.

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During a free consultation, we will look at the important aspects of your case, answer your questions, and explain your legal rights and options clearly. All submissions are confidentially reviewed by Mark Breyer.

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Confidentially reviewed by Attorney Mark Breyer