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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 A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by ...
. 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. 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.'', 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 punishable ...
law of a given state or nation. It may be possible for a family to seek retribution against someone who kills or is accused of killing a family member through
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 punishable ...
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 C ...
prosecution, which has a higher burden of proof. However, the two actions are not mutually exclusive; a person may be
prosecuted A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal trial ...
criminally for causing a person's death (whether in the form of
murder Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person without justification or excuse, especially the ...
,
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 ce ...
,
criminally negligent homicide Negligent homicide is a criminal charge brought against a person who, through criminal negligence, allows another person to die. Examples include the crash of Aeroperu Flight 603 near Lima, Peru. The accident was caused by a piece of duct tape ...
, 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 Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. With an area of , Australia is the largest country by ...
, 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 A waiver is the voluntary relinquishment or surrender of some known right or privilege. Regulatory agencies of state departments or the federal government may issue waivers to exempt companies from certain regulations. For example, a United St ...
.


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 as opposed to clear and convincing or
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, becau ...
. Each state has different laws regarding wrongful death claims. In most states, the statute of limitations (time limit to file a case) varies according to how the death occurred. For example, in
Oregon Oregon () is a U.S. state, state in the Pacific Northwest region of the Western United States. The Columbia River delineates much of Oregon's northern boundary with Washington (state), Washington, while the Snake River delineates much of it ...
, 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 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 m ...
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. Miss ...
,
New Hampshire New Hampshire is a U.S. state, 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 t ...
, 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 t ...
.


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'.


See also

* Weregild


References

{{Reflist, 30em Tort law