Wrongful death claim
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. The claim is the result of
statute. Under
common law, a dead person cannot bring a suit, and this created a legal hole 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.
Unlike most
criminal law cases, private parties bring the suit. In principle, the
defendant can refuse to testify on the grounds of
self-incrimination but if a defendant invokes this right, the defendant has presented no case and the
plaintiff automatically wins the case.
The
standard of proof is typically
preponderance of the evidence as opposed to
clear and convincing or
beyond a reasonable doubt. For all the above reasons, it is often easier for a family to seek retribution against someone for wrongful death in
tort than a proper
criminal law conviction. It should be noted, however, that 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 cases).
In most, if not all states in the United States, there was no
common law right to recover civil damages for the wrongful death of a person. However, now the states have each 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
Lord Campbell's Act for the origin of wrongful death liability.
The death must have been caused, in whole or in part, by the
defendant's conduct, even though there was no direct intention to kill the victim. The defendant must have been deemed negligent or strictly liable for the victim's death. Also the deceased has dependent party such as family members who have suffered from emotional and monetary damages as a result of the death.
