Wrongful death is a claim in
common lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions 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
statuteA statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
. Under
common lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, a dead person cannot bring a suit, and this created a
loopholeA loophole is a weakness that allows a system to be circumvented.Loophole may also refer to:*Arrowslit, a slit in a castle wall*Loophole , a short science fiction story by Arthur C...
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.
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. In
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and the
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, it is 'on the balance of probabilities'. For this reason it is often easier for a family to seek retribution against someone who kills a family member through
tortA tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
than a
criminalCriminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
prosecution. However, the two actions are not mutually exclusive; a person may be
prosecutedThe prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
criminally for causing a person's death (whether in the form of
murderMurder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
,
manslaughterManslaughter is a legal term for the killing of a human being, in a manner considered by law as less culpable than murder. The distinction between murder and manslaughter is said to have first been made by the Ancient Athenian lawmaker Dracon in the 7th century BC.The law generally differentiates...
, criminally negligent homicide, or some other theory) and that person can also be sued civilly in a wrongful death action (as in the
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). Wrongful death is also the only recourse available when a
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, not an individual, causes the death of a person; for example, historically, families have tried (both successfully and unsuccessfully) to sue
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companies for wrongful deaths of their customers.
In most common law jurisdictions, there was no
common lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
right to recover civil damages for the wrongful death of a person.: Wrongful death actions were strictly statutory.. Some jurisdictions have recognized a common law right of recovery for wrongful death, reasoning that “there is no present public policy against allowing recovery for wrongful death." 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. Many jurisdictions enacted statutes to create a right to such recovery. The issue of liability will be determined by the
tortA tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
law of a given state.
See the Fatal Accidents Act 1846 (Lord Campbell's Act) for the origin of wrongful death liability.