In a wrongful death action a defendant may assert a defense of comparative negligence against a statutory survivor to reduce the defendant’s negligence and the survivor’s recovery. However, pursuant to the Wrongful Death Act, a defense of comparative negligence which is asserted against a particular survivor, may reduce or bar that particular survivor’s recovery, but will not affect any other survivor’s recovery. Additionally, a defendant may assert claims for contribution against all responsible survivors in a third party complaint.

Moreover, a defendant may assert a defense of comparative fault negligence to establish that the decedent’s own negligence contributed to his or her injuries or death. Pursuant to the Comparative Fault Statute § 768.81, the defendant may claim that the decedent’s own negligence reduce the recovery of the decedent’s estate and of his or her survivors. The Florida Supreme Court has adopted a defense of comparative negligence in a wrongful death action. The Florida Supreme Court has also adopted the theory of strict liability in a products liability case, which allows the defense to assert decedent’s comparative negligence as a defense to a strict liability action. Further, the Wrongful Death Act only bars the reduction of recovery of one survivor by the comparative fault of another survivor, but has no effect on the defense of decedent’s comparative negligence. In other words, if a defendant asserts that the decedent was comparatively negligent, it may reduce or bar the recovery of all of the survivors and the estate. The Seatbelt Defense has been approved for use in a wrongful death action arising from a motor vehicle accident. The defense is a subspecies of the doctrine of avoidable consequences, or the duty to mitigate damages. Therefore, the defendant may claim that the decedent was comparatively negligent in failing to wear a seatbelt, and bar or reduce the recovery of the estate and/or the statutory survivors.

In order to recover the amount you deserve in your wrongful death action, you need a qualified wrongful death attorney that is willing to fight for your rights. Call Sharmin & Sharmin P.A. at 1-800-74-TRIAL.