Legal Dictionary

wrongful death

Legal Definition of wrongful death

Noun

  1. An American tort law action which claims damages from any person who, through negligence or direct act or omission, caused the death of certain relatives (e.g.. spouse, children or parent). These actions are commenced under special "wrongful death statutes" because under the common law, there is no right of action for survivors for their own loss as a result of someone's death. The Canadian equivalent of the wrongful death legislation is generally known as the "fatal accidents act." In England, it is known as Lord Campbell's Act.

See also


Definition of wrongful death

Further reading

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.[1]

In most common law jurisdictions, there was no common law right to recover civil damages for the wrongful death of a person.[2] 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."[3] 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.[4] Many jurisdictions enacted statutes to create a right to such recovery.[5] 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.

References

  1. Console, Richard P. "How Are Wrongful Death Cases and Injury Cases Different?", Attorneys Console & Hollawell P.C., August 29th, 2011, accessed September 9, 2011.
  2. 22A Am. Jur. 2d Death § 1.
  3. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772 (1970).
  4. Restatement (Second) of Torts § 925 (1979).
  5. 22A Am. Jur. 2d Death § 3.

References:

  1. Wiktionary. Published under the Creative Commons Attribution/Share-Alike License.



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