Wrongful death claim
Encyclopedia
Wrongful death is a claim in common law
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 statute
. Under common law
, a dead person cannot bring a suit, and this created a loophole
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 Australia
and the United Kingdom
, 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 tort
than a criminal
prosecution. 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
, manslaughter
, 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
). Wrongful death is also the only recourse available when a company
, not an individual, causes the death of a person; for example, historically, families have tried (both successfully and unsuccessfully) to sue tobacco
companies for wrongful deaths of their customers.
In most common law jurisdictions, there was no common law
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 tort
law of a given state.
See the Fatal Accidents Act 1846 (Lord Campbell's Act) for the origin of wrongful death liability.
Common law
Common 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 statute
Statute
A 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 law
Common law
Common 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 loophole
Loophole
A 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 Australia
Australia
Australia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
and the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, 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 tort
Tort
A 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 criminal
Criminal law
Criminal 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 prosecuted
Prosecutor
The 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 murder
Murder
Murder 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...
, manslaughter
Manslaughter
Manslaughter 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 O. J. Simpson murder case
O. J. Simpson murder case
The O. J. Simpson murder case was a criminal trial held in Los Angeles County, California Superior Court from January 29 to October 3, 1995. Former American football star and actor O. J...
). Wrongful death is also the only recourse available when a company
Company
A company is a form of business organization. It is an association or collection of individual real persons and/or other companies, who each provide some form of capital. This group has a common purpose or focus and an aim of gaining profits. This collection, group or association of persons can be...
, not an individual, causes the death of a person; for example, historically, families have tried (both successfully and unsuccessfully) to sue tobacco
Tobacco
Tobacco is an agricultural product processed from the leaves of plants in the genus Nicotiana. It can be consumed, used as a pesticide and, in the form of nicotine tartrate, used in some medicines...
companies for wrongful deaths of their customers.
In most common law jurisdictions, there was no common law
Common law
Common 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 tort
Tort
A 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.