| Read Time: 3 minutes | Wrongful Death
proving wrongful death

When a family has a wrongful death cause of action, they must prove the defendant’s negligence.

While the exact types of proof may differ from other injury cases, the elements of proof remain the same.

Here’s an overview of how to prove wrongful death and the various steps involved in the process.

What Is Considered Wrongful Death?

A wrongful death claim is any case where a victim dies due to the negligent actions of another person.

Most of the time, this happens in situations where a defendant is negligent, disregards the safety of the victim, or intentionally harms them.

As such, wrongful death claims may arise from criminal acts, such as murder or manslaughter, or personal injury incidents like a car accident or slip and fall.

The goal of a wrongful death claim is to seek reimbursement for the emotional and financial losses of the victim’s family. 

Is Wrongful Death a Tort?

Even if a wrongful death claim stems from a criminal act—if the victim’s family seeks monetary compensation for their loss, New Mexico law considers the family’s claim to be a civil tort case.

A civil case is the only way to get monetary compensation for your losses.

In fact, many families pursue a wrongful death civil claim at the same time the State is pursuing criminal charges against the defendant.

However, most cases of wrongful death do not arise from criminal behavior. The majority arise from negligence or carelessness. 

How Do You Prove Wrongful Death in a Lawsuit?

Proving negligence in wrongful death cases might seem straightforward at first, but it isn’t always as easy as it seems.

Whether you’re suing for loss of potential income, mental anguish, or both, there are a few different elements involved in your case.

Elements of a Wrongful Death Suit

So, how do you prove wrongful death?

Usually, wrongful death law based on negligence divides proof into four elements: duty of care, breach of duty, causation, and damages.

To pursue compensation, you must show all of these elements. If any one of these required elements is questionable, it may jeopardize your case.

Each requires certain types of evidence, some of which may be difficult to obtain without the help of an attorney.

Duty of care

One of the first steps in a wrongful death lawsuit is showing that the defendant had a duty of care toward the victim.

This duty of care varies depending on the circumstances of the death, so the evidence required isn’t always the same.

For example, it is generally accepted that any driver on the road has a duty to obey traffic laws to keep other motorists safe.

In car accident cases, it’s unlikely that the court requires significant proof of this duty.

Conversely, in a premises liability case, you would have to establish the relationship between the landowner and the victim before a duty attaches.

For example, a business owner has a duty to invitees (business customers) but not to trespassers. 

Breach of duty

Next, you must also show that the defendant breached their duty of care. Again, the exact proof depends on the specifics of the case.

In a car accident, you might need to show that the defendant broke a traffic law, such as running a red light.

In a premises liability case, you might have to show that the owner failed to warn customers of a known hazard.


After showing that a defendant breached their duty of care, a plaintiff must prove that the breach caused the death of their loved one.

This is where proving negligence becomes a little more difficult. If you cannot show that the defendant’s breach of duty caused the death, then your claim will likely fail. 


Finally, if the defendant caused your loved one’s death, you need to show the damages you suffered as a result.

In wrongful death cases, this includes both economic and non-economic losses like:

  • Mental anguish;
  • Funeral expenses;
  • Medical costs of the victim before death;
  • Loss of income from the decedent;
  • Loss of potential benefits (pension, health coverage, etc.);
  • Loss of care, protection, companionship, or guidance; and
  • Loss of consortium for the victim’s spouse.

There are several sources of evidence when it comes to financial damages, like bills, receipts, or quotes.

However, determining emotional losses is more personal and will likely require the help of an attorney.

If You Lost a Loved One Due to Negligence, Our Attorneys Are Here to Assist You

Losing a loved one to a negligent or intentional act is devastating and can result in a lifetime of pain for families.

At Tawney, Acosta & Chaparro P.C., our attorneys know this and want to help with your wrongful death claim.

To schedule a free legal consultation, please call us at 575-222-1000 or visit one of our offices in New Mexico or Texas.

Author Photo

Alejandro Acosta

Mr. Acosta is a lifelong resident of El Paso. He graduated from Cathedral High School in 2000 and graduated from St. Mary’s University in San Antonio in 2004. Mr. Acosta went on to attend Sandra Day O’ Connor College of Law (Arizona State Law School). He graduated in 2008, receiving his J.D. and his Indian Legal Certificate for his work in Indian Law and dealings with various tribal nations throughout Arizona. Alejandro has been licensed to practice law in Texas since 2008 and has been licensed in the State of New Mexico since 2011.

Rate this Post

1 Star2 Stars3 Stars4 Stars5 Stars