Defenses in a Wrongful Death Suit 

In addition to statute of limitations restrictions, there are defenses that may be used to combat a wrongful death suit.  These defenses are described next.

Statute of Limitations

The applicable time limitation for bringing a wrongful death suit in New York is two years.[1]  If a suit is not brought within this time period, it will forever be barred.

You should always contact a personal injury lawyer as soon as possible after any injury accident caused by or due to the negligence of other persons or entities.  There are many issues that can affect the statute of limitations.

Additionally, there are other defenses which include those that could have been made against the decedent had he or she lived and brought his or her own claim for personal injuries. The main defenses are causation, comparative negligence, and imputed comparative negligence. The availability of any of these defenses may also bar a plaintiff from recovery or reduce the amount of damages awarded.


In order to hold a defendant responsible for wrongful death, the plaintiff must prove that the defendant’s conduct was the sole or a contributing cause of the decedent’s death.  In many cases there may be one that person or entity responsible.


If a person was killed on Corporation X’s amusement park ride in part due to improper maintenance of a seat belt, but also because another rider pushed the decedent off the seat, Corporation X may still be found liable for damages.

Often, the period between when the fault occurred and when death results can take seconds, as in the case of a car accident where a victim dies at the scene, or months, as where a doctor prescribes the wrong medication that over time results in a patient’s death. In some cases, years may elapse, such as the case in which a car accident victim may be in coma for years before death.

The time period that elapses between the date of an accident and the date of death does not matter.  As with all injury cases, it’s important to contact an experienced injury lawyer immediately after an injury accident or wrongful death to protect and preserve important rights before any statute of limitations expires, including the right to sue for damages from an accident and the right to sue for wrongful death.

Proving the Link Between the Negligence and Wrongful Death

There must be a causal connection between the injury and the death in order for a defendant to be found liable for wrongful death.


A person may have suffered in a coma for years before dying from a disease (such as pneumonia) that was a direct complication from the person’s compromised state of health.  If the pneumonia is such that a person in normal health would not have died, the defendant may be liable for wrongful death.


A person sustains a serious head injury, but does not seek immediate medical attention.  After several days of head pains, the person goes to the hospital. There, he dies while the hospital was delayed in diagnosing his injury.  Although, the hospital may have been negligent in its treatment, the proximate cause of death may be found to be the person’s failure to seek medical attention (assuming earlier treatment may have prevented his death).  If his death could not have been prevented even if he had sought immediate medical attention, the hospital may be liable, and the person who died may not have had comparative negligence.

Comparative Negligence

Comparative negligence is conduct by the decedent that contributed to his or her own death.


A person riding a bicycle at night without brakes or light reflectors who is struck and killed by a truck may be found to have been comparatively negligent in causing his own death.

If a decedent is comparatively negligent, the amount of any damages awarded may be reduced by the percentage of fault assigned to the decedent. The defense of comparative negligence, however, is a fact for the jury to consider and generally cannot be determined until after a case begins.

Imputed Comparative Negligence

In some instances, one of the beneficiaries may be comparatively negligent or responsible for the decedent’s death.  In some states, if one beneficiary is partially or wholly at fault in the decedent’s death, the other beneficiaries cannot sue for wrongful death. In New York, however, even a beneficiary who is partially at fault can recover damages, as long as the beneficiary’s fault arises from negligence and not an intentional act.[2]  If a survivor is found to be negligent, the non-negligent survivor’s recovery cannot be reduced due to another survivor’s negligence.[3]

We Challenge the Assertions Made by Defendants to Escape Liability

Defendants normally want to avoid liability for their actions or negligence by any way possible, including blaming others and the victims they injure.  We fight back.

When defendants seek to avoid liability through legal or other theories of non-culpability, our role is to show why these theories should fail – either as a matter of law or as matters not supported by the evidence.

In most personal injury and wrongful death cases, we will be in communication with legal counsel for the defendants (which often include lawyers hired by or at the request of insurance carriers).  We will learn about their theories of non-culpability, and we will explain why we believe that their theories will fail at trial.  In pretrial negotiations and at any mediations, defendants will normally be given an opportunity to settle a case for fair compensation to our clients, or they can choose to take the case to a trial, and let a judge or jury decide the outcome.


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[1] N.Y. Est. Powers & Trusts Law § 5-4.1 (Consol. 2002)

[2] See McKay v. Syracuse Rapid Transit Rwy Co., 208 N.Y. 359 (1913).

[3] See Guilmette v. Ritayik, 39 A.D.2d 339 (N.Y. App. Div. 1972).

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