Wrongful death claim

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Wrongful death is a claim in common law jurisdictions against a person who can be held liable for a death.[1] 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'.[2] 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 in the United States when a company, not an individual, causes the death of a person;[3] for example, historically, families have tried (both successfully and unsuccessfully) to sue tobacco companies for wrongful deaths of their customers.[4]

In most common law jurisdictions, there was no common law right to recover civil damages for the wrongful death of a person.[5]: Wrongful death actions were strictly statutory.[6] Some jurisdictions have recognized a common law right of recovery for wrongful death,[7] reasoning that “there is no present public policy against allowing recovery for wrongful death."[8] 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.[9] Many jurisdictions enacted statutes to create a right to such recovery.[10] 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.[11]

To an extent, people can protect themselves from wrongful death lawsuits by having the participants sign a waiver.[12]


  1. ^ "Wrongful Death". Lawbrain.com. http://lawbrain.com/wiki/Wrongful_Death. Retrieved 2012-03-08.
  2. ^ "Nominet". Nominet. http://www.nominet.org.uk/disputes/drs/legalissues/. Retrieved 2012-03-08.
  3. ^ "Common Causes of Wrongful Death". Lawfirms.com. http://www.lawfirms.com/resources/personal-injury/wrongful-death/common-causes-wrongful-death.htm. Retrieved 2012-03-08.
  4. ^ Console, Richard P. "How Are Wrongful Death Cases and Injury Cases Different?", Attorneys Console & Hollawell P.C., August 29th, 2011, accessed September 9, 2011.
  5. ^ 22A Am. Jur. 2d Death § 1.
  6. ^ "Issues Related to Commencing Plaintiffs’ Wrongful Death Cases in California". Gjel.com. http://www.gjel.com/news/plaintiffs-wrongful-death-cases.html. Retrieved 2012-03-08.
  7. ^ "Wrongful Death". Death.uslegal.com. http://death.uslegal.com/wrongful-death/. Retrieved 2012-03-08.
  8. ^ Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772 (1970).
  9. ^ Restatement (Second) of Torts § 925 (1979).
  10. ^ 22A Am. Jur. 2d Death § 3.
  11. ^ "Text Of Fatal Accidents Act 1846" (PDF). http://www.ahmedandqazi.com/actsandregulations/tort/theFatalAccidentsAct.pdf. Retrieved 2012-03-08.
  12. ^ "Protecting yourself from wrongful death". Waiverform.org. http://waiverform.org/wrongful-death-waiver/. Retrieved 2012-03-08.