How to Defend Against a Wrongful Death Lawsuit in Wisconsin?

A wrongful death lawsuit can expose a person, business, employer, or other potentially responsible party to significant financial liability. It can also involve complex questions about negligence, causation, insurance coverage, and the conduct of the person who died.

If you have been named as a defendant in a wrongful death lawsuit in Wisconsin, the first step is not to assume that the allegations against you are automatically true. A wrongful death claim must still satisfy the legal requirements for establishing liability.

Wisconsin’s wrongful death statute, Wis. Stat. § 895.03, generally allows a claim when a person’s death was caused by a wrongful act, neglect, or default that would have supported a claim had the person survived. In other words, the underlying claim must have been one for which the deceased could have recovered damages had death not occurred.

That means a defendant may have several potential defenses depending on the circumstances.

What Is a Wrongful Death Lawsuit?

A wrongful death lawsuit is a civil claim arising from someone’s death that was allegedly caused by another person’s wrongful act, neglect, or default.

The circumstances can vary considerably. A wrongful death claim might arise from:

• A motor vehicle accident
• A truck or commercial vehicle crash
• Medical malpractice
• A workplace accident
• A dangerous property condition
• A defective product
• Negligent supervision
• Negligent security
• Nursing home or elder care negligence
• Other forms of alleged negligence

The fact that someone died does not by itself establish that another person or business is legally responsible.

The plaintiff generally must establish the elements necessary to impose liability under the underlying claim. Depending on the circumstances, that can include proving a duty of care, a breach of that duty, causation, and legally recoverable damages.

Can You Defend Against a Wrongful Death Lawsuit?

Yes. Being named as a defendant does not mean that liability has already been established.

Wisconsin’s wrongful death statute is derivative in nature. It allows a wrongful death claim based on an underlying claim that the deceased could have maintained if they had survived.

This can make the underlying facts extremely important.

For example, if the evidence does not establish that the defendant was negligent, the wrongful death claim may fail. Similarly, if the defendant’s conduct did not cause the death, there may be a basis for challenging liability.

A defense may also involve the deceased person’s own conduct, the conduct of another person, procedural issues, or disputes concerning the damages being claimed.

Common Defenses to a Wrongful Death Claim in Wisconsin

The appropriate defense depends on the facts and the legal theory behind the lawsuit. Some of the issues that may need to be examined include the following.

1. The Defendant Did Not Owe a Duty of Care

Negligence generally requires a legally recognized duty of care.

A defendant may argue that the circumstances do not establish the type of duty necessary to impose liability.

For example, the relationship between the parties, the defendant’s role, the location of an accident, or the nature of the alleged conduct may affect whether a duty existed.

This is particularly important when a lawsuit attempts to impose responsibility on someone who was not directly involved in the event that caused the death.

2. There Was No Breach of the Duty of Care

Even when a duty exists, the plaintiff generally must establish that the defendant failed to act as required under the circumstances.

A defendant may dispute whether their conduct was unreasonable or negligent.

Evidence can be important here. Depending on the case, relevant evidence may include:

• Accident reports
• Photographs and videos
• Medical records
• Witness statements
• Employment records
• Inspection records
• Maintenance records
• Safety policies
• Training records
• Vehicle data
• Electronic communications
• Expert testimony

The question is not simply whether a tragic event occurred. The issue is whether the defendant’s conduct legally amounted to negligence or another actionable wrong.

3. The Defendant Did Not Cause the Death

Causation is often one of the most important issues in a wrongful death case.

A plaintiff may establish that something went wrong without establishing that the defendant’s conduct actually caused the death.

For example, a defendant may argue that:

• The death resulted from a different cause
• Another person’s conduct caused the fatal event
• The alleged negligence did not materially contribute to the death
• A pre-existing medical condition was responsible
• An independent event intervened between the defendant’s conduct and the death

Medical and accident reconstruction experts may become important when causation is disputed.

A defendant does not necessarily avoid liability simply because another factor was involved. The legal significance of another cause depends on the facts and applicable law.

4. Another Person or Event Was Responsible

Some wrongful death lawsuits involve multiple people, businesses, or events.

For example, a fatal vehicle collision could involve:

• Multiple drivers
• A vehicle manufacturer
• A vehicle owner
• An employer
• A road or property owner
• A maintenance company
• A contractor
• Another potentially negligent party

The defense may therefore involve determining who actually contributed to the death and to what extent.

This is one reason a thorough investigation should take place before accepting the plaintiff’s version of events.

5. The Deceased Was Also Negligent

Wisconsin follows a comparative negligence system.

Under Wis. Stat. § 895.045, contributory negligence does not automatically prevent recovery when the person’s negligence is not greater than the negligence of the person against whom recovery is sought. However, damages may be reduced in proportion to the negligence attributed to the person seeking recovery. The statute also provides that the plaintiff’s negligence is measured separately against each person found to be causally negligent.

This can become particularly important in wrongful death cases involving the conduct of the deceased.

For example, depending on the circumstances, evidence might show that the deceased:

• Was distracted while driving
• Was speeding
• Failed to follow a safety procedure
• Failed to use available safety equipment
• Ignored a known warning
• Entered an unsafe area
• Contributed to the circumstances that resulted in the fatal incident

Wisconsin case law has recognized that a decedent’s negligence can affect recovery in a wrongful death action.

However, comparative negligence is highly fact-specific. It should not be treated as a simple argument that the deceased was “partly responsible.” The evidence must support the particular allocation of causal negligence.

6. The Plaintiff Cannot Establish the Required Elements

A wrongful death lawsuit must still satisfy the legal requirements for the underlying cause of action.

Depending on the case, the defense may challenge whether the plaintiff has established:

1. A legal duty
2. A breach of that duty
3. Causation
4. Legally recoverable damages
5. Any other elements required by the specific claim

Because Wisconsin’s wrongful death statute is tied to the underlying actionable claim, a defect in that underlying claim can be significant.

This is why a wrongful death defense is not simply about disputing the amount of money being requested. The defendant may need to challenge the legal foundation of the claim itself.

7. The Claim May Be Barred by a Statute of Limitations

Timing can be another important issue.

Wisconsin has different statutes of limitation that may apply depending on the underlying cause of action. The applicable deadline is not necessarily determined simply by looking at the date of death.

Wisconsin legal authorities recognize that wrongful death claims can be derivative of the underlying claim, meaning the applicable limitation period may depend on the nature of that underlying claim.

For example, medical malpractice, motor vehicle claims, product liability claims, and other types of cases can involve different statutory rules.

Because limitation periods can be affected by the particular facts and legal theory, a defendant should not assume that a wrongful death claim is timely or untimely without having the case reviewed by an attorney.

What Evidence Can Help Defend a Wrongful Death Lawsuit?

Evidence can determine whether a wrongful death defense succeeds.

Once a defendant learns that a claim or lawsuit may be coming, preserving potentially relevant evidence is critical.

Depending on the circumstances, this may include:

Accident Evidence

• Police reports
• Crash reports
• Photographs
• Surveillance footage
• Dash camera footage
• Vehicle data
• Accident reconstruction evidence
• Road conditions
• Weather records
• Witness information

Medical Evidence

• Medical records
• Autopsy findings
• Toxicology reports
• Prior medical records when relevant
• Expert medical opinions
• Evidence concerning the cause of death

Business Records

For cases involving a business, relevant evidence could include:

• Employee training records
• Safety policies
• Inspection records
• Maintenance records
• Incident reports
• Scheduling records
• Internal communications
• Contracts
• Vendor records

Electronic Evidence

Modern wrongful death cases can also involve:

• Text messages
• Emails
• Phone records
• GPS information
• Electronic logs
• Social media posts
• Security camera footage
• Computer records

Evidence should be preserved rather than selectively deleted or altered.

What Should You Do After Receiving a Wrongful Death Lawsuit?

If you have been served with a wrongful death complaint, do not ignore it.

1. Read the Complaint Carefully

Identify:

• Who filed the lawsuit
• Who has been named as a defendant
• What conduct is being alleged
• What caused the death according to the complaint
• What damages are being claimed
• What court is handling the case
• What deadlines appear in the documents

2. Notify Your Insurance Company

If the incident may fall under an insurance policy, notify the insurer promptly.

Depending on the circumstances, coverage could potentially involve automobile insurance, homeowners insurance, commercial liability insurance, professional liability insurance, or another policy.

Do not assume that your insurer’s involvement eliminates the need for independent legal advice.

3. Preserve Evidence

Do not delete, destroy, modify, or discard documents or electronic information that could relate to the incident.

This can include emails, text messages, photographs, videos, maintenance records, vehicle information, and other potentially relevant materials.

4. Avoid Making Casual Statements About Fault

Statements made after a serious accident can become relevant later.

That does not mean you should refuse legitimate communications or fail to cooperate with your insurer. It means you should understand the legal implications of statements about what happened before discussing the matter in detail.

5. Speak With an Attorney

Wrongful death litigation can involve complex factual and legal questions. An attorney can review the complaint, identify potential defenses, evaluate the evidence, and determine what deadlines and procedural requirements apply.

The State Bar of Wisconsin likewise advises people dealing with serious personal injury matters to consult an experienced attorney before giving statements or signing documents.

Can a Wrongful Death Lawsuit Be Settled?

Yes.

A wrongful death case does not necessarily have to go to trial.

Depending on the circumstances, the parties may negotiate a settlement before or after a lawsuit is filed. Settlement discussions may involve:

• The strength of the evidence
• The likelihood of proving liability
• Comparative negligence
• The extent of the claimed damages
• Insurance coverage
• Litigation costs
• Expert testimony
• The risks of trial

Settlement is not an admission that the defendant was legally responsible. The terms and legal effect of any settlement depend on the agreement reached by the parties.

The State Bar of Wisconsin notes that many personal injury disputes are resolved through settlement, mediation, or other proceedings rather than a trial.

What Happens If the Wrongful Death Case Goes to Trial?

If the case cannot be resolved, it may proceed through discovery and eventually to trial.

During discovery, both sides may seek information and evidence from the opposing party and third parties. This can include:

• Written questions
• Requests for documents
• Depositions
• Expert discovery
• Medical records
• Accident reconstruction evidence
• Employment and financial information

At trial, the plaintiff generally has the burden of proving the elements of the claim under the applicable law.

The defense can challenge the plaintiff’s evidence and present evidence supporting its own position.

The outcome may depend on questions such as:

• Was there a duty?
• Was that duty breached?
• Did the defendant’s conduct cause the death?
• Did someone else cause or contribute to the death?
• Did the deceased contribute to the incident?
• What damages are legally recoverable?

How Comparative Negligence Can Affect a Wisconsin Wrongful Death Case

Comparative negligence can be especially important when the facts indicate that more than one person contributed to the fatal incident.

Wisconsin law provides that damages can be reduced according to the negligence attributed to the person seeking recovery, subject to the statutory rules governing comparative negligence. The statute also requires the negligence of the person seeking recovery to be measured separately against each person found to be causally negligent.

In a wrongful death case, this can require a detailed examination of the deceased person’s conduct.

Consider a hypothetical example involving a fatal traffic collision. If evidence shows that both drivers made decisions that contributed to the crash, the court or jury may need to determine the causal negligence attributable to each party.

The same basic concept can arise in workplace accidents, premises liability cases, and other negligence claims.

Why You Should Not Try to Handle a Wrongful Death Lawsuit Alone

Wrongful death litigation is different from simply responding to an insurance claim.

A defendant may be dealing with:

• A formal lawsuit
• Strict procedural deadlines
• Multiple parties
• Insurance coverage issues
• Expert witnesses
• Comparative negligence
• Substantial damages claims
• Discovery requests
• Depositions
• Settlement negotiations
• The possibility of trial

A mistake early in the case can affect the defense later.

An attorney can help determine which defenses are supported by the evidence and which arguments are unlikely to succeed. Just as importantly, counsel can help preserve evidence and respond appropriately to the legal process.

Defending a Wrongful Death Lawsuit in Milwaukee

Wrongful death cases in Milwaukee can involve many different circumstances, from serious vehicle collisions to workplace incidents and premises liability claims.

The location of an accident can also make local evidence particularly important. Depending on the circumstances, investigators may need to examine traffic patterns, surveillance footage, nearby businesses, road conditions, or witness accounts.

For example, an investigation involving an incident near Havenwoods State Forest may require a different examination of the surrounding roadway and environmental conditions than an incident in a dense commercial area. Similarly, a collision or other accident near Hartung Park could require investigators to identify nearby surveillance footage, witnesses, road conditions, and other evidence relevant to what happened.

The important point is that the location itself does not establish liability. The evidence surrounding the specific incident does.

Frequently Asked Questions

Does being sued for wrongful death mean I am responsible?

No. A lawsuit contains allegations that must be established through the legal process. The defendant can challenge the factual and legal basis of the claim.

What is the strongest defense to a wrongful death lawsuit?

There is no single defense that applies to every case. Depending on the circumstances, important defenses can include lack of duty, no breach of duty, lack of causation, another person’s responsibility, comparative negligence, and applicable procedural or limitation defenses.

Can the deceased person’s negligence affect a wrongful death claim in Wisconsin?

Yes. Wisconsin’s comparative negligence statute applies to negligence resulting in death, and the deceased person’s causal negligence can affect recovery under the circumstances.

Can a wrongful death lawsuit be dismissed?

Potentially. A claim may be subject to dismissal or other limitations depending on the allegations, evidence, procedural posture, applicable law, and whether the plaintiff can establish the required elements.

Should I talk to the plaintiff or their attorney myself?

It is generally advisable to obtain legal advice before making substantive statements about a wrongful death claim. The appropriate response can depend on whether a lawsuit has been filed, whether an insurer is involved, and the circumstances of the case.

How long do I have to respond to a wrongful death lawsuit?

The deadline depends on the court documents and the procedural rules that apply to the case. Do not assume you have a particular number of days without reviewing the summons and complaint and obtaining appropriate legal advice.

What if I believe someone else caused the death?

That may be an important part of the defense. Evidence showing that another person or entity caused or contributed to the death can affect the liability analysis, particularly where multiple parties may have contributed to the incident.

Get Legal Guidance When Facing a Wisconsin Wrongful Death Claim

A wrongful death lawsuit can have serious financial and legal consequences, but being named as a defendant does not automatically establish liability.

The defense may involve challenging negligence, causation, damages, comparative negligence, or other legal issues. The right approach depends on the facts, evidence, applicable insurance coverage, and the specific claims made in the lawsuit.

If you have received a wrongful death complaint in Wisconsin, getting legal advice promptly can help you understand the allegations, protect your rights, preserve important evidence, and determine what defenses may be available. Our experienced lawyers at Mulholland Injury Law can help you evaluate your case. Contact us today!