When someone’s actions (or failure to act) causes another person’s death, the victim’s family can file a wrongful death claim under Oklahoma Statutes Title 12, §1053. However, the defendant and their insurance company will often raise certain defenses to reduce their liability. These defenses can complicate a case and make it harder for the family to recover full compensation.
Knowing what to expect can help you understand how these strategies work and why having an experienced wrongful death attorney in Tulsa is so important.
Comparative Negligence
One of the most common defenses in Oklahoma wrongful death cases is comparative negligence. This defense argues that the deceased person was partly responsible for their own death.
Under Oklahoma’s modified comparative negligence law, a family can still recover damages if their loved one was less than 50% at fault. However, the total award is reduced in proportion to that percentage. For example, if a court finds that the decedent was 30% responsible, the family can only recover 70% of the total damages.
Insurance companies frequently use this defense to try and shift the blame onto the victim. An attorney must carefully investigate the facts to respond to these kinds of allegations appropriately.
Assumption of Risk
Defendants sometimes claim that the deceased person assumed the risk of harm. This means they knowingly engaged in a dangerous activity and accepted the potential consequences.
For instance, if the death occurred during a high-risk sport or while the decedent was on private property with visible hazards, the defense might argue that the person voluntarily faced known dangers. Proving assumption of risk requires showing that the deceased had clear knowledge of the hazard and consented to face it. This is a high standard that a skilled lawyer can challenge effectively.
Lack of Causation
Another common argument is that the defendant’s actions did not directly cause the death. This defense challenges the causal link between the negligent behavior and the fatal outcome.
For example, if the victim had a pre-existing medical condition that contributed to their death, the defense might argue that this was the true cause. Plaintiffs must establish both actual cause and proximate cause to prevail in a wrongful death claim, often requiring expert testimony.
Statute of Limitations
Oklahoma’s statute of limitations for wrongful death lawsuits is generally two years from the date of death. If a family files after that period, the defendant can move to dismiss the case entirely.
Missing this time limit usually ends a family’s right to recover compensation, though note that there are exceptions that can adjust the deadline for some cases. This is why it’s essential to act quickly and choose the best wrongful death attorney in Tulsa for your case as soon as possible after a loss.
How a Lawyer Can Help You Overcome These Defenses
A qualified wrongful death lawyer can anticipate these defense strategies and take proactive steps to counter them effectively. An attorney can:
- Gather strong evidence to establish liability and causation
- Work with expert witnesses to bolster your claim
- Identify weaknesses in the defense’s arguments
- Protect your case from unfair comparative fault claims
- Ensure that all deadlines and procedural requirements are met
- Negotiate with insurers from a position of strength
By managing these critical aspects of your case, your lawyer can help ensure that your family receives fair treatment and the full amount of compensation you deserve.
Contact an Experienced Wrongful Death Attorney Today
Losing a loved one is devastating, and facing legal defenses can make the process even more stressful. Gorospe Law Group is here to help you secure a sense of justice and take legal action on your behalf. Call us today for a free initial consultation at (918) 582-7775.