Q: If an at fault person is hit by oncoming car who could have missed him is there wrongful death?
The deceased lost control ended up in opposite lane oncoming car could have missed him but smashed him into ditch and tree and killed him
A: Sounds like decedent was at fault. Recovery for wrongful death would be very difficult.
A:
Maybe. It depends on the state in which the wrongful death accident occurred. Kentucky uses a "pure comparative fault" system for automobile accidents and wrongful death cases, where each party involved is assigned a percentage of fault based on their contribution to the accident. In this system, you can generally still file a claim even if decedent was partially at fault.
The relevant insurance companies and any subsequent legal proceedings will review evidence, statements from parties and witnesses, and other relevant details to determine each party's degree of fault. An accident reconstruction specialist may be helpful int this situation as the other driver could have been speeding, texting, etc. that could have contributed to the accident.
Under the pure comparative fault doctrine, the amount an injured party can recover for personal injury or wrongful death is reduced according to their percentage of fault. For example, if decedent's damages from the accident totaled $1,000,000.00 and he was found 75% at fault, the recovery from a wrongful death claim would be reduced to $250,000.00. I recommend speaking with an experienced wrongful death law firm like Stein Whatley Astorino, PLLC to discuss your options in greater detail.
Rob Astorino Jr. agrees with this answer
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