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What Are the Elements of a Wrongful Death Case? - The Larsen Firm

What Are the Elements of a Wrongful Death Case?

You might be searching for answers if your loved one died tragically because of another person’s negligence. You might have questions like, How can I get justice for my loved one? Filing a wrongful death claim can help you get the justice you seek.

The right lawyer can help you understand the issues involved in a wrongful death case. At The Larsen Firm, our lawyers have over 40 years of experience fighting for people like you. We take the time to explain the elements of a wrongful death case, so you know what to expect when you file your claim. 

Who Can File a Wrongful Death Claim?

Before discussing the elements of wrongful death, it is crucial to determine who has a right to sue. California’s wrongful death statute provides the basis for a legal claim when someone dies because of another’s wrongful act. The law specifies who can bring a lawsuit and who can recover damages. 

The law allows the decedent’s surviving spouse, children, domestic partner, and issue of deceased children, or, if there are no living descendants, then those who would be able to inherit according to the rules of intestate succession could also file a wrongful death lawsuit. Certain dependents of the victim can sue as well.

The personal representative of the victim’s estate can file a wrongful death suit for the benefit of the victim’s spouse, children, domestic partner, or parents. The personal representative does not have an individual right to sue unless they can prove that the statute applies to them. 

Wrongful Death Elements in California

To win a wrongful death lawsuit, you must prove each of the four elements of wrongful death by a preponderance of the evidence. The preponderance of the evidence standard used in civil cases is different from the much higher beyond a reasonable doubt standard used in criminal cases. The preponderance of the evidence standard of proof simply means that the elements are more likely true than not. You might have heard it described as a 51-49 split. 

As a person bringing a wrongful death claim, failing to prove an element of the cause of action means you will lose your case. In other words, the burden of proof is on you as the plaintiff to prove your case. 

So, what are the elements of a wrongful death case? Under California’s wrongful death law, the plaintiff has to prove:

  1. Misconduct by the defendant—usually based on negligence or intentional misconduct;
  2. Breach of duty owed to the deceased;
  3. Causation; and
  4. Damages.

We will examine each element more closely. 


In California, the plaintiffs can sue under the wrongful death law based on the defendant’s misconduct. Most often, plaintiffs base their claim on negligence. However, the law also allows plaintiffs to file a wrongful death claim if a reckless or intentional wrongful act claimed the victim’s life.

If there is no intentional misconduct, you build your negligence claim by first proving that the defendant owed the victim a duty of care. A duty of care is a standard of care people in society owe one another under certain circumstances. For instance, all drivers owe all other drivers on the road a duty of care to follow traffic laws and drive carefully. Or for medical malpractice, a physician will usually owe their patients a duty of care based on professional standards. As you can see, the duty owed depends on the circumstances. 

Breach of the Duty of Care

Whether you are driving a car,  performing surgery, or practicing law, you have a duty of care particular to your situation. 

Whether or not the defendant breached their duty of care is based upon the reasonable person standard. In simple terms, the law asks whether a reasonable person would act differently in a given situation. If yes, then that person likely breached the duty of care. 


To prove your negligence claim, the defendant’s breach of their duty of care has to cause the victim’s death. California law requires a connection between the defendant’s negligent act and the death. 


Damages are the last of the wrongful death elements a claimant must prove. Even if you prove the defendant’s liability, you can’t win a wrongful death suit unless you prove that you suffered losses. Funeral expenses, loss of companionship, loss of services, and loss of financial benefits are just a few examples of the types of damages you can recover in a wrongful death lawsuit.

Proven Advocates for Justice

At The Larsen Firm, we specialize in serious injury and wrongful death suits. Call us today at 855-508-9565 to learn more about your rights from our award-winning and top-rated wrongful death lawyers. We have collected over $950 million in damages for our clients. Call us today so to discuss how we can help you.

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