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.

In most common law jurisdictions, there was no common law right to recover civil damages for the wrongful death of a person.:[4] Wrongful death actions were strictly statutory.[5] Some jurisdictions have recognized a common law right of recovery for wrongful death,[6] reasoning that “there is no present public policy against allowing recovery for wrongful death.”[7] 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.[8] Many jurisdictions enacted statutes to create a right to such recovery.[9] The issue of liability will be determined by the tort law of a given state.

Each state has different laws regarding wrongful death claims. In most states, the statute of limitations (time limit to file a case) varies according to how the death occurred. For example, in Oregon, many wrongful death claims have a statute of three years – but there are many exceptions, including: when alcohol is involved, when a public body is involved, or in product liability claims.[10]

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]

One of the most difficult wrongful death issues, and a particularly poignant illustration of how wrongful death expands liability beyond that at common law, is whether a wrongful death claim can be founded upon intentional infliction of emotional distress that caused the decedent to commit suicide. The first jurisdiction to allow such a claim was California in 1960,[13] followed by Mississippi,[14] New Hampshire,[15] and Wyoming.[16]

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