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 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].
You can protect yourself from wrongful death lawsuits. Although not perfect you can have participants sign a waiver. [12].
[edit] References
- ^ Wrongful Death
- ^ Nominet
- ^ Common Causes of Wrongful Death
- ^ Console, Richard P. "How Are Wrongful Death Cases and Injury Cases Different?", Attorneys Console & Hollawell P.C., August 29th, 2011, accessed September 9, 2011.
- ^ 22A Am. Jur. 2d Death § 1.
- ^ Issues Related to Commencing Plaintiffs’ Wrongful Death Cases in California
- ^ Wrongful Death
- ^ Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772 (1970).
- ^ Restatement (Second) of Torts § 925 (1979).
- ^ 22A Am. Jur. 2d Death § 3.
- ^ Text Of Fatal Accidents Act 1846
- ^ Protecting yourself from wrongful death
