A loved one dies in a crash, a medical emergency, or another incident, and the person accused of causing the death argues that your loved one shared responsibility. That allegation does not automatically prevent your family from pursuing compensation.
New Jersey generally allows recovery in a negligence-based wrongful death case if the deceased person was no more than 50% responsible. The damages are reduced by that person’s share of fault. If the deceased was more than 50% responsible, recovery is generally barred. An accusation alone is not enough—the defense must prove that your loved one’s negligence contributed to what happened.
Understanding how fault is established can help your family evaluate a wrongful death claim and respond when an insurer or defendant challenges responsibility.
Key Takeaways About Filing a Wrongful Death Claim When the Deceased Was Partly at Fault in New Jersey
- Your family may still recover compensation if the deceased person was 50% or less responsible.
- Compensation is reduced by the deceased person’s share of fault. For example, 20% fault generally means a 20% reduction in damages.
- The defense must prove that your loved one acted negligently and that this conduct contributed to the accident or fatal injuries.
- Video, witness statements, medical records, and expert analysis can help challenge an unsupported allegation of fault.
- New Jersey wrongful death lawsuits generally must be filed within two years after death, but some claims involve shorter notice requirements or exceptions.
Can You File a Wrongful Death Claim if the Deceased Was Partly at Fault in New Jersey?
New Jersey’s modified comparative negligence rule allows a family to recover damages even when the deceased person contributed to the incident. Under N.J.S.A. 2A:15-5.1, the deceased person’s negligence cannot exceed the combined negligence of the defendants against whom recovery is sought.
In an ordinary negligence case, that generally means:
- 20% at fault: Recovery is allowed, with damages reduced by 20%.
- 50% at fault: Recovery is allowed, with damages reduced by half.
- More than 50% at fault: Recovery is generally barred.
For example, a driver’s speeding might contribute to a fatal collision, but another driver may bear most of the responsibility for running a red light. The speeding does not automatically eliminate the family’s claim. The question is how much each driver’s conduct contributed to the collision.
These rules concern negligence-based civil claims. Other claims arising from a death, such as workers’ compensation death benefits, follow different rules.
How Does Comparative Negligence Apply to Wrongful Death Claims?
A wrongful death claim generally requires proof that another person’s wrongful conduct caused the death. When the defense argues that the deceased also acted negligently, the court must determine whether there is sufficient evidence to submit that issue to the judge or jury deciding the facts.
The defense must establish both that the deceased failed to use reasonable care and that this failure contributed to the accident or injuries. An unrelated mistake or an allegation about the person’s character does not establish shared fault.
A New Jersey Supreme Court case, Del Tufo v. Township of Old Bridge, illustrates how this issue can arise. The estate of a man who died after taking a lethal dose of cocaine alleged that police officers negligently failed to obtain prompt medical assistance. The defense argued that the man’s own conduct—including failing to disclose the drug use and declining medical help—also contributed to his death.
The trial court refused to instruct the jury on comparative negligence. The Appellate Division ordered a new trial, and the Supreme Court agreed that the jury should have been permitted to consider the man’s conduct.
The decision does not mean that someone who needs emergency care is automatically responsible for a poor outcome. Whether comparative negligence applies depends on the person’s conduct, ability to protect themselves, and the defendant’s legal duty under the circumstances.
How Is the Deceased Person’s Percentage of Fault Determined?
When a case goes to trial, the judge or jury evaluates the evidence and assigns percentages of responsibility to those properly included in the fault allocation. Those percentages must total 100%.
For example, the evidence might support this allocation:
- The deceased person: 30%.
- Defendant A: 50%.
- Defendant B: 20%.
The deceased person’s share would generally reduce the damages by 30%. The court then applies the relevant legal rules to determine the judgment against each defendant.
The evidence must connect the deceased person’s conduct to the accident or fatal injuries. Simply being present at the scene, violating an unrelated rule, or making a mistake that did not contribute to the harm is not enough.
Not every case reaches a jury. Parties may negotiate a settlement based on the available evidence and their competing assessments of fault.
How Can Partial Fault Reduce Wrongful Death Compensation?
Once shared fault is established, the deceased person’s percentage generally reduces the damages available through the claim.
For example, if the full damages are $500,000:
- 20% fault: The award would be reduced to $400,000.
- 50% fault: The award would be reduced to $250,000.
These examples show the effect of comparative negligence alone. Settlements, other applicable legal rules, and the ability to collect a judgment can affect the final recovery.
When multiple defendants share responsibility, a separate rule determines how much may be collected from each. Under N.J.S.A. 2A:15-5.3, a defendant found 60% or more responsible can generally be required to pay the entire recoverable award, after accounting for the deceased person’s fault. A defendant below that threshold generally pays only the portion attributable to that defendant.
The 60% rule concerns how responsibility is divided among defendants. It does not change the rule that the deceased person generally must be 50% or less at fault for recovery to be allowed.
What Evidence Can Help Challenge an Unfair Fault Allocation?
The same evidence can help establish the defendant’s negligence and challenge an allegation that your loved one shared responsibility. Depending on the circumstances, useful evidence may include:
- Surveillance or dash-camera footage: May show traffic movements, warning signs, visibility, and the conduct of those involved.
- Photographs and physical evidence: Can document vehicle damage, road conditions, hazards, and the location of the incident.
- Accident reconstruction: Can help explain speed, timing, impact angles, and whether someone had a reasonable opportunity to avoid the collision.
- Medical and toxicology records: May help evaluate allegations involving impairment, a medical emergency, or the cause of death.
- Cellphone and electronic records: Can help establish whether distraction or communication played a role.
- Eyewitness testimony: May clarify what your loved one and the defendant did before the incident.
- Expert testimony: Can explain technical or medical questions that require specialized knowledge.
In an unpublished 2025 decision, Brooks v. Longcor, the Appellate Division considered challenges to evidence and jury instructions after a fatal collision with a truck parked on a highway shoulder. The court upheld the challenged rulings, including those involving evidence of the deceased driver’s alcohol consumption.
The decision illustrates how closely courts examine evidence offered to support a shared-fault defense. Because it is unpublished, it does not establish binding statewide precedent.
Preserving evidence promptly matters. Recordings may be overwritten, physical conditions may change, and witnesses can become harder to locate.
What Evidence Can Help Connect the Defendant’s Conduct to the Death?
Challenging shared fault is only part of the case. The family must also establish that the defendant’s wrongful conduct caused or contributed to the death.
The evidence should help answer three questions:
- What happened? Accident reports, photographs, recordings, and witnesses can help establish the events.
- What did the defendant do or fail to do? Safety records, maintenance documents, medical records, and other evidence may show how the defendant failed to meet a legal duty.
- How did that conduct contribute to the death? Medical records, autopsy findings, and expert testimony may establish the connection.
The defendant’s conduct does not have to be the only contributing cause. However, the claim needs evidence establishing a legally sufficient connection between that conduct and the death.
Who Is Legally Allowed to Bring a Wrongful Death Claim in New Jersey?
A wrongful death lawsuit is brought through an authorized representative rather than by each family member filing a separate claim.
Under N.J.S.A. 2A:31-2, the representative may be an administrator ad prosequendum—a person appointed to pursue the wrongful death case—or a general administrator. If the deceased left a will that has been admitted to probate, the qualified executor or an administrator with the will annexed brings the action.
The compensation benefits the people entitled to recover under New Jersey’s wrongful death law. Eligibility follows the state’s rules for inheritance without a will, with additional rules addressing dependency and distribution. Being named in the deceased person’s will does not, by itself, establish entitlement to wrongful death compensation.
Wrongful death damages generally address the beneficiaries’ financial losses, including lost support and the economic value of services, guidance, and assistance the deceased would have provided. Recoverable damages may also include hospital, medical, and funeral expenses incurred for the deceased. The wrongful death claim does not compensate family members for grief itself. A separate survival claim may address losses belonging to the deceased, such as conscious pain and suffering before death. The claims serve different purposes and cannot duplicate the same damages.
What Filing Deadlines Apply to Wrongful Death Claims in New Jersey?
New Jersey wrongful death lawsuits generally must be filed within two years after the deceased person’s death under N.J.S.A. 2A:31-3.
There are exceptions and additional requirements:
- Certain homicide cases: An action may be brought at any time if the death resulted from murder, aggravated manslaughter, or manslaughter for which the defendant was convicted, found not guilty by reason of insanity, or adjudicated delinquent.
- Claims against public entities or public employees: A notice of claim generally must be presented within 90 days after the claim accrues. Limited exceptions may apply.
- Related claims: A survival action or another claim arising from the same events may involve different deadline considerations.
Do not assume that an ongoing insurance investigation or disagreement over fault extends the filing deadline.
Frequently Asked Questions About Shared Fault in New Jersey Wrongful Death Claims
Does Not Wearing a Seatbelt Count as Fault for Causing the Crash?
Not wearing a seatbelt does not establish that your loved one caused the crash. However, it may reduce compensation if the defense proves that an available seatbelt should have been worn and would have prevented or reduced the fatal injuries. This generally requires expert evidence connecting the lack of seatbelt use to the injuries.
Can the Defense Use an Unrelated Criminal History to Argue Fault?
An unrelated criminal history generally does not establish that the deceased caused the incident. Courts apply rules governing relevance, unfair prejudice, and other permitted uses of evidence. A past conviction may raise a separate issue if someone testifies, but it does not automatically prove shared responsibility for the death.
Can Family Members Provide Evidence Contesting Fault?
Family members can share photographs, messages, documents, and firsthand observations with the attorney handling the claim. They may also testify when their knowledge is relevant. The claim itself is brought through the legally authorized representative.
Does an Insurance Company’s Fault Decision Control the Case?
An insurer’s assessment does not bind a court. The family can challenge that assessment with evidence and pursue the claim when appropriate. If the parties cannot resolve the dispute, fault may ultimately be decided at trial.
Get Legal Help with Brandon J. Broderick, Attorney at Law
Questions about shared fault can make an already difficult loss more overwhelming. Understanding the evidence, the available claims, and the deadlines can help your family make informed decisions about what comes next.
At Brandon J. Broderick, Attorney at Law, we can review the circumstances of your loved one’s death, explain how New Jersey law may apply, and discuss your options for pursuing compensation. Our team is available 24/7, and we offer a free consultation.