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Proving Fault in a Wrongful Death Case Involving a Dangerous Property Condition or a Construction Site Accident

Every year tens of thousands of people are killed in accidents due to hazardous property conditions (rotten decks, improperly designed stairs, ice) and dangerous conditions at construction sites (falls from roofs/scaffolding, falling debris, electrocution). The burden of proof in a wrongful death action is on the person or persons seeking to make a claim against those they believe are responsible for the accidental death. In New Hampshire, negligence (fault) for an accident requires proof by a “preponderance of the evidence.” A “preponderance of the evidence” is evidence that establishes that something is more likely to be the case than not.

In the overwhelming majority of wrongful death cases, the party against whom a claim is brought (the defendant) will argue that the decedent was wholly or partially responsible for his/her own death, what is referred to as “contributory negligence.” The burden of proving contributory negligence is on the defendant and proof of contributory negligence must be established by a preponderance of the evidence. If the decedent was contributorily negligent, damages awarded will be reduced in proportion to each party’s respective degree of fault. However, if the decedent is found to be more at fault than the defendant, the defendant will not be liable for any damages under New Hampshire’s wrongful death laws.

When a wrongful death is caused by a dangerous property or worksite condition, it is important to have an expert in building construction/maintenance or construction safety practices investigate, photograph, and measure the accident scene and obtain statements from witnesses as soon as possible after the accident. Delay almost always works in the defendant’s favor—evidence is lost, witnesses’ memories fade, etc. Immediately after an accident, a preservation letter should also be sent to the defendant and the defendant’s insurance company. Upon receipt of a preservation letter, the defendant and his/her insurer is required to gather and maintain for later inspection any and all evidence related to an accident including, but not limited to, records of prior safety complaints and investigations and maintenance and repair documentation.

A thorough investigation of a wrongful death should leave no stone unturned. Though the need for a thorough investigation may seem obvious, many inexperienced attorneys frequently make the mistake of not digging deep for evidence that can make all the difference in a case. To illustrate: we recently took over a wrongful death case that was being handled by a relatively inexperienced attorney with whom the decedent’s family had become dissatisfied. The decedent was a young man was killed when a deck that he and his friends were on collapsed. The property owner argued he had no knowledge of the defect that caused the deck’s failure and, as a result, the insurance company denied our clients’ claims. For over two years, our clients’ former attorney did little, if anything, to gather evidence that would establish that the property owner knew or should have known about the defect that caused the deck to collapse. After our firm took over the case, we subpoenaed, among other things, the property owner’s correspondence with his insurance company. The insurance company fought to withhold that correspondence, a fight it eventually lost. When the documents were turned over, we located a report of an inspection of the property by the insurance carrier two years before the accident that showed numerous property hazards, including the defective way in which the deck was connected to the structure. Although the property owner corrected some of the deficiencies, the faulty deck connections were never addressed. With that evidence in our hands, the insurance company quickly reversed its position and settled the case.