In wrongful death cases, the defendant and their legal team will often raise arguments and defenses to limit their liability or avoid responsibility altogether. These defenses can challenge the facts of the case, the extent of the damages, or even whether the claim was filed properly. Understanding these common defenses is essential for preparing a strong case and protecting your rights.

Below are the most frequently used defenses in wrongful death cases, grouped into categories:

Liability-Based Defenses

These defenses focus on whether the defendant was actually responsible for the death.  These liability arguments are dependent on the underlying negligence that caused the death. Here are a few examples:

De Minimis or Trivial Defect

The defendant may argue that the alleged hazard or defect was so minor that it didn’t pose a real danger. This is known as the “trivial defect” or “de minimis” doctrine.

Example:

• In a slip-and-fall case, the defendant might argue that a crack in the sidewalk was too minor to have caused the accident.

New York courts evaluate this defense based on the totality of the circumstances, including the size of the defect and the conditions at the time of the accident. If there’s any reasonable evidence of danger, the case is likely to go to a jury.

Open and Obvious Hazard

The defendant may argue that the dangerous condition was so open and obvious that the deceased should have seen and avoided it.

Example:

• If the deceased tripped over a bright yellow speed bump in broad daylight, the defense might claim that the hazard was clearly visible and should have been avoided.

While this defense may reduce liability under comparative negligence (discussed below), it usually doesn’t eliminate the defendant’s responsibility entirely.

Assumption of Risk

The defense may argue that the deceased knowingly and voluntarily accepted the risks involved in a dangerous activity.

Example:

• If the deceased was injured while skydiving, the defense might argue that they accepted the inherent risks of jumping out of a plane.

However, assumption of risk only applies to reasonable and expected dangers—not to negligence. If the skydiving company failed to maintain the parachute properly, the defense wouldn’t hold up.

Comparative Negligence

New York follows a pure comparative negligence rule (CPLR §1411). This means that even if the deceased was partially at fault for the accident, the family can still recover compensation, though it will be reduced based on the degree of fault.

Example:

• If the deceased ran a red light or failed to follow safety protocols at work, the defense could argue that the deceased’s actions contributed to the fatal outcome, reducing the final award by the percentage of fault.

If a jury decides the case is worth $500,000 but finds that the deceased was 50% responsible for the accident, the family would receive 50% of the award ($250,000).

In New York, even if the deceased was 99% at fault, the family can still recover the remaining 1%.

Comparative negligence is a common defense in auto accidents, construction accidents, and pedestrian cases. An experienced attorney can reduce the impact of this defense by proving that the defendant’s actions were the primary cause of the accident.

Causation Defenses

Even if the defendant’s negligence is established, they may argue that they did not directly cause the death.

Lack of Causation

The defense may argue that their actions weren’t the true cause of death. In a medical malpractice case, they might claim the death resulted from an underlying health condition. In a motor vehicle accident case, they could argue that the deceased’s actions, like running a red light, were the actual cause of the fatal outcome.

Countering this defense often requires expert testimony from doctors, accident reconstruction specialists, or other professionals.

Preexisting Condition

The defense may argue that the deceased’s death was caused by a preexisting health condition, not the defendant’s negligence.

Example:

• If the deceased had a heart condition, the defense might claim that a fatal heart attack was inevitable, even without the accident.

Under New York law, if the defendant’s negligence worsened or accelerated the existing condition, they can still be held liable.

Procedural Defenses

These defenses focus on technical issues that could prevent the case from proceeding to trial or result in an early dismissal. While these defenses don’t challenge the facts of the case, they raise legal barriers that the plaintiff must overcome to maintain a wrongful death claim.

Statute of Limitations

In New York, wrongful death cases must generally be filed within two years from the date of death (EPTL §5-4.1).

Example:

• If the case involves a government entity, a Notice of Claim must be filed within 90 days of the death. Failing to meet this deadline can result in the case being dismissed, even if the evidence of negligence is strong.

An experienced attorney can identify exceptions or tolling arguments that may extend the filing period.

Lack of Standing

Only a personal representative of the estate (appointed through Letters of Administration or Letters Testamentary) can bring a wrongful death claim in New York.

Example:

• If a sibling files a wrongful death claim without being named as the estate representative, the case could be dismissed for lack of standing.

Damages-Based Defenses

These defenses focus on reducing the amount of compensation awarded.

Minimizing Financial Losses

The defense may argue that the deceased was not a major financial provider or that their income was inconsistent.

Example:

• If the deceased was unemployed at the time of death, the defense might argue that the financial loss to the family was limited.

Disputing Pain and Suffering

The defense may claim that the deceased did not suffer conscious pain and suffering before death.

Example:

• If the death was instantaneous, the defense might argue that there was no opportunity for the deceased to experience pain, reducing the damages for conscious suffering.

New York law requires evidence that the deceased was aware and conscious to recover these damages.

Challenging Medical or Funeral Expenses

The defense may argue that certain medical or funeral costs are inflated or unrelated to the wrongful death.

Example:

• If the plaintiff includes unrelated medical bills, the defense might seek to reduce or exclude those amounts from the award.

Immunity or Limited Liability

Certain defendants, such as government entities or employers, may invoke immunity or limited liability.

Governmental Immunity

Municipalities and government entities may claim immunity from liability for certain governmental functions, especially if such functions involve discretionary actions. Under the public duty rule, a government agency generally owes a duty of care to the public as a whole, but not to any individual person. 

Example:

• If a 911 dispatcher sends an ambulance with the wrong level of care or the responding paramedics fail to provide proper treatment, the municipality may claim governmental immunity by arguing that the emergency response involved a discretionary decision protected under the law.

In these cases, your attorney will need to argue the immunity defense does not apply or that an exception exists, such as the creation of a special relationship between the individual and the government that creates a duty of care to a specific individual.

Workers’ Compensation as an Employee’s Sole Remedy

Employers may be shielded from wrongful death lawsuits under New York’s workers’ compensation laws.

Example:

• If a construction worker dies on the job, the employer might argue that the family’s only remedy is through the workers’ compensation system.

An attorney may look for third-party liability, such as defective equipment or the negligence of a subcontractor, to work around this defense.

Key Takeaways

Defendants in wrongful death cases often use a variety of arguments and defenses to limit their liability or reduce the value of a claim. From challenging causation to questioning the extent of damages, these defenses require careful legal strategy and preparation.

An experienced wrongful death attorney can:

• Anticipate these defenses.
• Gather strong evidence to counter them.
• Build a compelling case that holds the defendant accountable.

By understanding these common tactics, families can better navigate the legal process and ensure that their loved one’s legacy is honored through justice and fair compensation.