Skip to main content

When a person dies as the result of an accident caused by another’s negligence there are two potential types of claims that may be made.  One is called a survival or survivorship action. The survival action is for the injury and conscious pain and suffering prior to death and related medical expenses.  This action is brought on behalf of the estate of the decedent.  The second action is the claim that family members may have for the wrongful death of the decedent.  Although these claims are typically brought together, this article focuses on the wrongful death claim.

If a person dies because of the misconduct or negligence of another, a claim may be made for wrongful death. This type of claim seeks compensation for the survivors’ losses caused by the death of a family member. Typically, these losses may include lost companionship, lost wages, and funeral expenses, among others.  In general, a claim may be made if the following can be proven:

  1. The accident resulting in the death was caused by someone else’s negligence or wrongful conduct.
  2. The claimants’ relationship to the deceased is as surviving spouse, parent, child, or, under some circumstances, sibling of the deceased. (but see below for the ‘hierarchy of claims and exceptions when the claim is based on medical malpractice)
  3. The death results in damages in the form of financial loss and/or loss of a loving relationship

These elements will be discussed in more detail below:


Essentially, negligence is carelessness. It is the failure to use reasonable care for the safety of others.  Negligence can be affirmative conduct (failing to stop at a stop sign) or the failure to do something that a person reasonably should (carefully observing whether a person is in the vicinity before discharging a firearm). Wisconsin law on negligence is explained to juries as follows:

A person is negligent when (he) (or she) fails to exercise ordinary care. Ordinary care is the care that a reasonable person would use in similar circumstances. A person is not using ordinary care and is negligent, if the person, without intending to do harm, does something (or fails to do something) that a reasonable person would recognize as creating an unreasonable risk of injury or damage to a person or property. WI JI Civil 1005

So, a person is negligent when, he or she does something, or fails to do something, that a reasonable person would know creates an unreasonable risk of injury or damage to a person or property. A person is negligent if their conduct causes injury or death to another, even though they were not trying to harm anyone.

The most familiar kind of negligence is by a driver causing an accident. Common examples of negligence by drivers include:  failing to stop for a red light or stop sign, traveling at excessive speeds, inattentive driving, or changing lanes into another car.  But negligence causing injury or death can occur in many other circumstances:

  • Medical negligence, or malpractice
  • Product liability, or producing an unsafe product that malfunctions and causes injury or death
  • Failing to maintain one’s property creates dangerous conditions for customers or visitors (failing to shovel snow or remove ice)
  • Negligently operating an ATV, SUV, boat, Farm machinery, or another vehicle

Contributory and Comparative Negligence

In many circumstances an accident is not caused by the negligence of just one person; it is the result of the combined negligence of two or more parties.  Again, the most familiar example would be a two-car accident at an intersection.  One driver may have failed to stop at a stop sign, but the other driver may have failed to use proper lookout when approaching and entering the intersection.  Typically, the driver who failed to stop would be primarily at fault, but the other driver would also be assigned some percentage of the total fault for the accident.  The percentage of total fault assigned to the injured or deceased driver is called ‘contributory negligence.’

Comparative Negligence

If contributory negligence of the deceased is part of the cause of the accident, then a comparison of the relative fault must be assessed between the deceased and the other party or parties.  Under Wisconsin Section 895.045 a claim can be successful only if the negligence of the deceased is equal to or less than another party’s negligence.  Section 895.045 states:

(1)  Comparative negligence. Contributory negligence does not bar recovery in an action by any person or the person’s legal representative to recover damages for negligence resulting in death or in injury to a person or property if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent. The liability of each person found to be causally negligent whose percentage of causal negligence is less than 51 percent is limited to the percentage of the total causal negligence attributed to that person. A person found to be causally negligent whose percentage of causal negligence is 51 percent or more shall be jointly and severally liable for the damages allowed.  See also, Delvaux v. Vanden Langenberg, 130 Wis. 2d 464387 N.W.2d 751 (1986).

Example of Comparative Negligence under Section 895.045

Assume the death is caused by the collision of two vehicles at an intersection.  The deceased had a through street (one which had no traffic control signs) and the other driver failed to stop for a stop sign.  After consideration of all the facts related to the collision, it would likely be found that the deceased driver was, at most, 20% causally negligent for the accident and the other driver 80% causally negligent.  The claimants would recover because the deceased driver’s negligence was less than the other driver’s.  However, the award of compensation would be reduced by 20% due to the deceased driver’s share of causal negligence.

When personal injury attorneys consider taking a case for wrongful death part of the consideration is whether the deceased’s negligence was equal to or less than the other parties to the accident.  While that assessment is often easy in claims arising from auto accidents, it can be far more complicated when the death is caused by a work accident, defective product or where the deceased slipped or tripped due to the condition of another’s property.  Often, experienced attorneys will take a case and only file a claim after thoroughly investigating the relative fault of the parties involved in an accident.

A claim can also be based on deliberate, intentional actions that cause the death of another. That is, a claim against a person who commits some form of intentional homicide or murder.  However, these claims are most likely to be subject to the criminal justice system and are not covered by liability insurance.  In addition, if the surviving spouse was the one who intentionally caused the death, that person can is not entitled to sue for damages for wrongful death. In Steinbarth v. Johannes, 144 Wis.2d 159, 423 N.W.2d 540 (1988), the court held that a spouse who intentionally kills his or her spouse is not considered a surviving spouse for purposes of the wrongful death statute.  Instead, the cause of action for wrongful death accrues to the deceased’s lineal heirs. (likely, this would be children, parents, or siblings)  This note focuses on the more common claim based on negligent conduct causing the accident leading to the death of another.

Hierarchy of Who is Eligible to Bring a Wrongful Death Claim?

Wisconsin Section 895.04 establishes who is legally entitled to bring a wrongful death claim.  The statute establishes a priority of who can bring the claim based on a person’s relationship to the deceased.  In order of priority, the following may bring a claim under Wisconsin’s inheritance law, Wis. Stats. Sec. 852.01, if there is no living person in the class above them. In general, the hierarchy of potential claimants is:

  1. Spouse or domestic partner (Wisconsin does not recognize a ‘common law spouse like some states) The interests of any surviving minor children must be considered in any settlement or judgment.
  2. Children – Parents (In a medical malpractice wrongful death claim only the claimants listed under Wis. Stat. 655.007 are eligible to bring a claim. The hierarchy under section 852.01 does not apply.  Only a spouse or parent of a minor child can bring a wrongful death claim based on medical malpractice.  See, Lornson v Siddiqui, 2007 WI 92. Adult children, therefore, are not eligible to bring a claim for the death of a parent and parents can’t bring a claim for the death of adult children based on medical malpractice.)
  3. Siblings

The hierarchy establishes the individual or class of individuals eligible to bring the claim.  For example, if there is a surviving spouse only that person is entitled to bring the wrongful death claim even if there are surviving children, parents, or siblings.  It should also be noted, however, that  If there is a surviving spouse with minor children, an amount of up to 50% must be set aside by the court for the children. Wis. Stats. § 895.045; Cogger v. Trudell, 35 Wis.2d 350, 151 N.W.2d 146 (1967). Under Wis. Stats. § 895.04(2) any claim with these circumstances require court approval where the interests of the minor children are considered.  In a typical close family situation, most of the proceeds from the claim will go to the surviving spouse with the expectation that these funds will naturally be used to support the children without specific amounts needing to be set aside. If there is no surviving spouse, but there are children of the deceased, then the children have the right to pursue a claim for wrongful death.

Compensation & Damages in Wrongful Death Claims

Economic Losses

  • Medical, Funeral & Burial Expenses The normal expenses related to funerals and burials are generally recoverable as part of the wrongful death claim.
  • Ambulance and Medical Expenses Even if the victim of the accident is determined to be dead on arrival, there may be related ambulance and emergency room expenses that can be part of the wrongful death claim
  • Loss of Income and Support Often, the most significant part of a wrongful death claim is the loss of financial support that the deceased would have contributed to a spouse and children if they had not died. The wrongful death claim will seek to compensate for the loss of income based on the normal work and life expectancy of the deceased.

 For example, if a forty-year-old husband or wife was working at the time of death, there would be a loss of income over the next 25 years.  If the deceased averaged about $50,000 that would be a total loss of $50,000 X 25yrs = $1,250,000.  That total would likely be reduced by several factors including reducing the gross total to the present value and considering the personal consumption of the deceased.   There are additional potential financial losses that may be part of a wrongful death claim including losses in pension or 401K contributions or loss of profits for business owners or shareholders.

  • Personal Services of the Deceased A wrongful death claim can include the value of the services and chores that the deceased would likely have provided to the family.  This may include: the cost of home and yard maintenance, maintenance of family automobiles, or the value of professional services that the deceased would have provided to family members at no, or little, cost. The value of these services is also calculated based on the normal life expectancy of the deceased.
  • Loss of Companionship/Relationship In most circumstances the person making the claim for the wrongful death of a family member suffers well beyond any financial or economic loss. The loss of the relationship is also a significant part of most claims.  In the context of a wrongful death claim of a spouse Wisconsin J.I. Civil 1870 defines the loss as follows:

 Society and companionship include the love, affection, care, and protection the spouse would have received from the deceased spouse had (he) (she) continued to live.  It does not include the loss of monetary support or the grief and mental suffering caused by the spouse’s death.

(In making an award consideration should be given to) the age of the deceased spouse and the age of surviving spouse; the past relationship between the spouses; the love, affection, and conduct of each toward the other; the society and companionship that had been given to surviving spouse by the deceased spouse; and the personality, disposition, and character of the deceased spouse

            Similar considerations are applied to the loss of a child, parent, or sibling.

 Again, it is important to note that the law for wrongful death arising from medical malpractice has some different rules, including the fact that only a spouse or parent of a minor child is eligible to make a claim for loss of society and companionship for wrongful death premised on medical negligence.

  • Caps on Wrongful Death Damages for Loss of Society & Companionship Wisconsin limits the total recovery a person may receive for loss of society and companionship in a wrongful death claim.  The limit is generally $350,000 unless the deceased is a minor child, which has a $500,000 limit.  Wisconsin Statute Section 894.04 (4) establishes the limits as follows:

…Additional damages not to exceed $500,000 per occurrence in the case of a deceased minor, or $350,000 per occurrence in the case of a deceased adult, for loss of society and companionship may be awarded to the spouse, children or parents of the deceased, or to the siblings of the deceased if the siblings were minors at the time of the death.

Time Limits to Bring a Claim

Wrongful death claims must be filed within a time set by statutory law.  This type of time period limitation law is called a “statute of limitations”. In Wisconsin, most wrongful death lawsuits must be filed within three years of the date of the person’s death. If, however, the person died as a result of a car accident, the wrongful death case must be filed within two years of the death. If the claim is not settled or a lawsuit is started within the statute of limitation, it will almost always be completely barred, and no compensation paid.   Wis. Stat. § 893.54.  (There are very rare exceptions to the statute of limitations.  An experienced personal injury attorney can advise a potential claimant based on the specific facts and applicable law) If you believe you have a wrongful death claim, get the guidance you need from an experienced lawyer to help you navigate the unfamiliar legal territory.