How Do You Prove Wrongful Death?

How Do You Prove Wrongful Death?

person holding flowers at a funeral after a wrongful death

Losing a loved one is a painful, overwhelming, and often confusing experience. If your loved one’s death was the result of someone’s negligence, the pain could be tenfold. 

Pursuing a wrongful death lawsuit is one way to recover damages you may be entitled to and move forward in the path of healing. Working with an experienced wrongful death attorney can be a helpful way to navigate the road ahead.

At Bachus & Schanker, our team of personal injury and wrongful death lawyers is committed to helping you get the resolution you and your family deserve. Contact our team today for a free case evaluation.

What is a wrongful death lawsuit?

A wrongful death is a civil claim brought forward by a plaintiff against a defendant regarding the death of the plaintiff’s loved one. If you feel the death of your loved one was brought on by an individual or corporation’s negligence, you may be able to recover compensation for their loss of life. 

Pursuing a wrongful death lawsuit can be an overwhelming and complicated process. For this reason, many individuals seek out the experience of a wrongful death lawyer. Experienced lawyers can help you obtain the important evidence that can help prove your case. Wrongful death lawsuit can be brought about for a variety of reasons, including the following:

Recoverable damages in Colorado wrongful death lawsuits

When filing a wrongful death lawsuit, plaintiffs can seek economic and non-economic damages. Non-economic damages are incalculable losses, including mental anguish, grief, and loss of consortium. Colorado’s legislature has a cap on non-economic damages, which is adjusted every two years for inflation.

Economic damages are calculable losses a plaintiff may seek following their loved one’s death. There is no cap on economic damages, and the Plaintiffs are able to seek full compensation for these losses. Examples of economic damages include but are not limited to the following: 

  • Funeral and burial costs
  • Medical expenses related to the death 
  • Loss of financial support 
  • Loss of expected wages over the decedent’s lifetime
  • Lost health insurance coverage

In cases where willful or reckless actions caused a death, the plaintiff can also seek punitive damages against the defendant. Punitive damages are a way to punish the defendant to keep them and others from engaging in similar actions that caused the death. Punitive damages are typically levied against corporations but are not common in wrongful death lawsuits. As with non-economic damages, the Colorado legislature has a cap that is adjusted every two years for inflation.

Who are the parties in a wrongful death case?

Wrongful death lawsuits are rather straightforward with defined parties. These types of lawsuits are brought forward by a “Plaintiff.” The plaintiff can be a designated beneficiary but is often a family member. 

If the decedent died with a will, the court could appoint an executor or representative of the estate who can bring forward a lawsuit on behalf of the decedent. 

A “Defendant” is a party the lawsuit is brought against. Defendants can be one or several individuals, companies, or a combination of both.

What must the plaintiff prove in a wrongful death case?

justice gavel and legal books on a desk

There are four elements of a wrongful death lawsuit. In order to bring forward a successful wrongful death lawsuit, these four elements must be met. They include the following: 

  • Negligence – Plaintiffs must prove that an individual or corporation was negligent, careless, or reckless in their action, which caused their loved one’s death. 
  • Breach of duty – Plaintiff must prove that the defendant owed their loved one a duty of care — that is, a reasonable level of duty to keep the decedent safe. For example, businesses have a duty of care to keep conditions on their property safe by fixing dangerous conditions and keeping pathways clear of trip or fall hazards; violating this duty of care results in a breach of duty
  • Causation – Plaintiff must prove causation, the notion that the negligence of a defendant and their breach of duty caused the death of their loved one. 
  • Damages – Plaintiffs must also show quantifiable damages following a loved one’s death. Evidence of damage is included but not limited to:
    • Hospitalization and medical expenses 
    • Burial costs 
    • Loss of income 
    • Loss of financial support
    • Pain and suffering 

Plaintiffs seeking a wrongful death lawsuit can benefit from the experience of a wrongful death lawyer. Knowledgeable attorneys will work to prove negligence and obtain critical evidence, including surveillance footage, witness statements, doctor testimony, and other documentation that shows the defendant was negligent. 

The burden of proof in a wrongful death case

Proving the four elements is critical to establishing a wrongful death claim. Through the lawsuit, the burden of proof rests with the plaintiff. That is, the plaintiff must prove that the negligence of the defendant is what caused their loved one’s death. 

The proof is substantiated by credible, verifiable, and compelling evidence that negligence took place. The burden of proof is not measured by how much evidence the plaintiff can bring forward but rather by the quality of that evidence. Failure to meet the burden of proof will result in failure to recover damages. 

Most wrongful death lawsuits are settled before going to trial. However, when a case goes to trial, the burden of proof will be decided by a judge or jury and is important to the success of a lawsuit. 

Who can file a wrongful death suit?

Like most states, Colorado sets specific guidelines on who can pursue a wrongful death lawsuit. Colorado law (Colo. Rev. Stat. §§ 13-21-201, 13-21-202) allows only the heirs of a loved one to pursue a wrongful death lawsuit. The state defines heirs as ‘lineal descendants’ of the victim.

Following an individual’s death, Colorado law allows the spouse the sole right to file a wrongful death lawsuit in the first year following the death. If the decedent did not have a spouse, their children might file, and if there are no children, parents may file a wrongful death lawsuit. 

After one year, the heirs of the victim can file a wrongful death lawsuit. They can also join in on a lawsuit filed by the spouse. Colorado does not allow siblings of the decedent to file a wrongful death lawsuit, even if they are the only surviving family members. 

Finally, if the decedent has a designated beneficiary, this individual is legally allowed to file a wrongful death lawsuit in the decedent’s name. 

How can a wrongful death attorney help me with my wrongful death claim?

wrongful death attorney writing in a law book at a table

A wrongful death lawyer can help you recover the compensation you deserve following the death of a loved one. Because the burden of proof lies with the plaintiff, a knowledgeable wrongful death lawyer can help you collect critical evidence to help prove your case.

At Bachus & Schanker, our wrongful death lawyers can help you navigate the road ahead following your loved one’s death. Contact our wrongful death attorneys today to schedule a free legal consultation call.


1(Colo. Rev. Stat. §§ 13-21-201, 13-21-202 (2021)

2Justia (2022) Economic Damages

3Justia (2022) Non-Economic Damages