Wrongful death claim is a claim against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute. In wrongful death cases, survivors are compensated for the harm, losses, and suffering they've suffered after losing a loved one.

Types of wrongful death claims

Any fatality caused by the wrongful acts of another may result in a wrongful death claim. Wrongful death claims are often based upon death resulting from

negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as ...

, for example following a motor vehicle accident caused by another driver, a dangerous roadway or defective vehicle, product liability, and

medical malpractice Medical malpractice is a legal cause of action that occurs when a medical or health care professional, through a negligent act or omission, deviates from standards in their profession, thereby causing injury or death to a patient. The neglige ...

. Dangerous roadway claims result from deaths caused in whole or in part by the condition of the roadway.

Common law jurisdictions

In most

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...

jurisdictions, there was no common law right to recover civil damages for the wrongful death of a person.22A Am. Jur. 2d Death § 1. Under common law, a dead person cannot bring a suit (under the maxim '' actio personalis moritur cum persona''), and this created an anomaly in which activities that resulted in a person's injury would result in civil sanction, but activities that resulted in a person's death would not. Some jurisdictions recognized a common law right of recovery for wrongful death, reasoning that "there is no present public policy against allowing recovery for wrongful death."''

Moragne v. States Marine Lines, Inc. Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970) is a United States Supreme Court case addressing the remedies under federal maritime law for tortious deaths on state territorial waters. Facts The petitioner's husband was a longshoreman ...

'', 398 U.S. 375, 90 S.Ct. 1772 (1970). In other jurisdictions the cause of action did not exist until the passage of a wrongful death statute. Jurisdictions that recognize the common law right to recovery for wrongful death have used the right to fill in gaps in statutes or to apply common law principles to decisions.Restatement (Second) of Torts § 925 (1979). Many jurisdictions enacted statutes to create a right to such recovery.22A Am. Jur. 2d Death § 3. The issue of liability will be determined by the

tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishabl ...

law of a given state or nation. It may be possible for a family to seek

retribution Retribution may refer to: * Punishment * Retributive justice, a theory of justice ** Divine retribution, retributive justice in a religious context * Revenge, a harmful action against a person or group in response to a grievance Film and televis ...

against someone who kills or is accused of killing a family member through

rather than a

criminal In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Ca ...

prosecution, which has a higher burden of proof. However, the two actions are not mutually exclusive; a person may be prosecuted

criminally In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Can ...

for causing a person's death (whether in the form of murder,

manslaughter Manslaughter is a common law legal term for homicide considered by law as less culpable than murder. The distinction between murder and manslaughter is sometimes said to have first been made by the ancient Athenian lawmaker Draco in the 7th ...

, criminally negligent homicide, or some other theory) and that person can also be sued civilly in a wrongful death action (as in the O.J. Simpson murder case).

Australia

In Australia, the standard of proof in a wrongful death action is ' on the balance of probabilities'. To an extent, people can protect themselves from wrongful death lawsuits by having the participants sign a waiver.

United States

"Wrongful death" is a cause of action, or type of claim, that can be brought when one person or entity wrongfully causes someone's death. It allows a lawsuit to be filed even though the person who was harmed is no longer alive to bring the case. Each state has its own wrongful death statute and, although the details of the statutes vary significantly from state to state, the roots of most can be traced back to Lord Campbell's Act, passed by the United Kingdom's Parliament in 1846. In some states, the family of the decedent must bring two different types of claims: a "wrongful death" claim to recover the "full value of the life" of the deceased, and a ''survival'' claim on behalf of the decedent's estate to recover for funeral expenses, pain and suffering, or punitive damages. The standard of proof in the United States is typically

preponderance of the evidence In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts ...

as opposed to

clear and convincing In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts ...

beyond a reasonable doubt Beyond a reasonable doubt is a legal standard of proof required to validate a criminal conviction in most adversarial legal systems. It is a higher standard of proof than the balance of probabilities standard commonly used in civil cases, bec ...

. Each state has different laws regarding wrongful death claims. In most states, the

statute of limitations A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. ("Time for commencing proceedings") In m ...

(time limit to file a case) varies according to how the death occurred. For example, in

Oregon Oregon () is a state in the Pacific Northwest region of the Western United States. The Columbia River delineates much of Oregon's northern boundary with Washington, while the Snake River delineates much of its eastern boundary with Idah ...

, many wrongful death claims are subject to a three-year statute of limitations - but there are many exceptions, including: when alcohol is involved, when a public body is involved, or in product liability claims. One of the most difficult wrongful death issues — and a particularly poignant illustration of how wrongful death expands liability beyond what was available at common law — is whether a wrongful death claim can be founded upon

intentional infliction of emotional distress Intentional infliction of emotional distress (IIED; sometimes called the tort of outrage) is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted ...

that caused the decedent to commit

suicide Suicide is the act of intentionally causing one's own death. Mental disorders (including depression, bipolar disorder, schizophrenia, personality disorders, anxiety disorders), physical disorders (such as chronic fatigue syndrome), and ...

. The first jurisdiction to allow such a claim was

California California is a state in the Western United States, located along the Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the most populous U.S. state and the 3rd largest by area. It is also the ...

in 1960, followed by

Mississippi Mississippi () is a state in the Southeastern region of the United States, bordered to the north by Tennessee; to the east by Alabama; to the south by the Gulf of Mexico; to the southwest by Louisiana; and to the northwest by Arkansas. Mis ...

New Hampshire New Hampshire is a state in the New England region of the northeastern United States. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Gulf of Maine to the east, and the Canadian province of Quebec to the nor ...

, and

Wyoming Wyoming () is a state in the Mountain West subregion of the Western United States. It is bordered by Montana to the north and northwest, South Dakota and Nebraska to the east, Idaho to the west, Utah to the southwest, and Colorado to the sou ...

United Kingdom

In the United Kingdom, liability for causing a wrongful death arose from the Fatal Accidents Act 1846 (Lord Campbell's Act). The burden of proof in a wrongful death action is 'on the balance of probabilities'.

References