Wrongful death is a type of legal claim or

cause of action A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a ...

against a person who can be held liable for a death. The claim is brought in a

civil action A lawsuit is a proceeding by one or more parties (the plaintiff or claimant) against one or more parties (the defendant) in a civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. T ...

, usually by close relatives, as authorized by

statute A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...

. In wrongful death cases, survivors are compensated for the harm and losses they have 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 care expected to be exercised in similar circumstances. Within the scope of tort law, negligence pertains to harm caused by the violation of a duty of care through a neg ...

, 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 negligen ...

. 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 Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

jurisdictions, there was no common law right to recover

civil damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognized at ...

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, other than breach of contract, 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 cri ...

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

rather than a

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

prosecution, which has a higher burden of proof. However, the two actions are not mutually exclusive; a person may be prosecuted criminally for causing a person's death (whether in the form of

murder Murder is the unlawful killing of another human without justification (jurisprudence), justification or valid excuse (legal), excuse committed with the necessary Intention (criminal law), intention as defined by the law in a specific jurisd ...

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, 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

Australia Australia, officially the Commonwealth of Australia, is a country comprising mainland Australia, the mainland of the Australia (continent), Australian continent, the island of Tasmania and list of islands of Australia, numerous smaller isl ...

, the standard of proof in a wrongful death action is ' on the balance of probabilities'. The statute of limitations to file a claim in Australia is three years from date of the death or the date upon which the cause of action arose. 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. A waiver is often written, such as a disclaimer that has been accepted, but it may also be spoken between two or more parties. When the right to hold a ...

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 a legal dispute, one party has the burden of proof to show that they are correct, while the other party has 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 ...

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 standard of balance of probabilities (US English: preponderance of ...

. 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 ...

(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 United States. It is a part of the Western U.S., with the Columbia River delineating much of Oregon's northern boundary with Washington (state), Washington, while t ...

, many wrongful death claims are subject to a three-year statute of limitations and in

North Carolina North Carolina ( ) is a U.S. state, state in the Southeastern United States, Southeastern region of the United States. It is bordered by Virginia to the north, the Atlantic Ocean to the east, South Carolina to the south, Georgia (U.S. stat ...

there is a two-year statute of limitation - although exceptions may apply that could potentially allow a later lawsuit. 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. Risk factors for suicide include mental disorders, physical disorders, and substance abuse. Some suicides are impulsive acts driven by stress (such as from financial or ac ...

. The first jurisdiction to allow such a claim was

California California () is a U.S. state, state in the Western United States that lies on the West Coast of the United States, Pacific Coast. It borders Oregon to the north, Nevada and Arizona to the east, and shares Mexico–United States border, an ...

in 1960, followed by

Mississippi Mississippi ( ) is a U.S. state, state in the Southeastern United States, Southeastern and Deep South regions of the United States. It borders Tennessee to the north, Alabama to the east, the Gulf of Mexico to the south, Louisiana to the s ...

New Hampshire New Hampshire ( ) is a U.S. state, state in the New England region of the Northeastern United States. It borders 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 landlocked U.S. state, state in the Mountain states, Mountain West subregion of the Western United States, Western United States. It borders Montana to the north and northwest, South Dakota and Nebraska to the east, Idaho t ...

United Kingdom

In the United Kingdom, liability for causing a wrongful death was initially codified into legislation by the Fatal Accidents Act 1846 (Lord Campbell's Act). The burden of proof in a wrongful death action is 'on the balance of probabilities'. In the UK, the statute of limitations for filing claim is three years. Liability is now to be had via the Fatal Accidents Act 1976.

References