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. 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 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.
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 cases).
In most common law jurisdictions, there was no common law right to recover civil damages for the wrongful death of a person.[1] 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."[2] 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.[3] Many jurisdictions enacted statutes to create a right to such recovery.[4] 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.
