Wrongful death claim

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Wrongful death is a type of legal claim or cause of action 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 authorized by statute. In wrongful death cases, survivors are compensated for the harm and losses they have suffered after losing a loved one.

Contents

Types of wrongful death claims

Any fatality caused by the wrongful acts of another may result in a wrongful death claim. Wrongful death claims are often based upon death resulting from negligence, for example following a motor vehicle accident caused by another driver, a dangerous roadway or defective vehicle, product liability, and medical malpractice. [2] Dangerous roadway claims result from deaths caused in whole or in part by the condition of the roadway.

Common law jurisdictions

In most common law jurisdictions, there was no common law right to recover civil damages for the wrongful death of a person. [3] Under common law, a dead person cannot bring a suit (under the maxim actio personalis moritur cum persona ), and this created an anomaly 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. Some jurisdictions recognized a common law right of recovery for wrongful death, [4] reasoning that "there is no present public policy against allowing recovery for wrongful death." [5] In other jurisdictions the cause of action did not exist until the passage of a wrongful death statute. [6]

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. [7] Many jurisdictions enacted statutes to create a right to such recovery. [8] The issue of liability will be determined by the tort law of a given state or nation.

It may be possible for a family to seek retribution against someone who kills or is accused of killing a family member through tort rather than a criminal prosecution, which has a higher burden of proof. 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). [9]

Australia

In Australia, the standard of proof in a wrongful death action is 'on the balance of probabilities'. [10]

To an extent, people can protect themselves from wrongful death lawsuits by having the participants sign a waiver. [11]

United States

"Wrongful death" is a cause of action, or type of claim, that can be brought when one person or entity wrongfully causes someone's death. It allows a lawsuit to be filed even though the person who was harmed is no longer alive to bring the case. Each state has its own wrongful death statute and, although the details of the statutes vary significantly from state to state, the roots of most can be traced back to Lord Campbell's Act, passed by the United Kingdom's Parliament in 1846. [12] In some states, the family of the decedent must bring two different types of claims: a "wrongful death" claim to recover the "full value of the life" of the deceased, and a survival claim on behalf of the decedent's estate to recover for funeral expenses, pain and suffering, or punitive damages.

The standard of proof in the United States is typically preponderance of the evidence [13] as opposed to clear and convincing or beyond a reasonable doubt.

Each state has different laws regarding wrongful death claims. [14] 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 are subject to a three-year statute of limitations - but there are many exceptions, including: when alcohol is involved, when a public body is involved, or in product liability claims.

One of the most difficult wrongful death issues — and a particularly poignant illustration of how wrongful death expands liability beyond what was available 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, [15] followed by Mississippi, [16] New Hampshire, [17] and Wyoming. [18]

United Kingdom

In the United Kingdom, liability for causing a wrongful death was initially codified into legislation by the Fatal Accidents Act 1846 (Lord Campbell's Act). [19] The burden of proof in a wrongful death action is 'on the balance of probabilities'. [10]

Liability is now to be had via the Fatal Accidents Act 1976. [20]

See also

Related Research Articles

A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

Champerty and maintenance are doctrines in common law jurisdictions that aim to preclude frivolous litigation:

Delict is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of wrongful conduct.

This article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil codes. There are three general categories of torts: intentional torts, negligence, and strict liability torts.

The system of tort law in Australia is broadly similar to that in other common law countries. However, some divergences in approach have occurred as its independent legal system has developed.

The tort of negligent infliction of emotional distress (NIED) is a controversial cause of action, which is available in nearly all U.S. states but is severely constrained and limited in the majority of them. The underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another individual. If one fails in this duty and unreasonably causes emotional distress to another person, that actor will be liable for monetary damages to the injured individual. The tort is to be contrasted with intentional infliction of emotional distress in that there is no need to prove intent to inflict distress. That is, an accidental infliction, if negligent, is sufficient to support a cause of action.

Nuisance is a common law tort. It means something which causes offence, annoyance, trouble or injury. A nuisance can be either public or private. A public nuisance was defined by English scholar Sir James Fitzjames Stephen as,

"an act not warranted by law, or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects".

<span class="mw-page-title-main">Delict (Scots law)</span> Actionable civil wrongs in Scots law

Delict in Scots law is the area of law concerned with those civil wrongs which are actionable before the Scottish courts. The Scots use of the term 'delict' is consistent with the jurisdiction's connection with Civilian jurisprudence; Scots private law has a 'mixed' character, blending together elements borrowed from Civil law and Common law, as well as indigenous Scottish developments. The term tort law, or 'law of torts', is used in Anglo-American jurisdictions to describe the area of law in those systems. Unlike in a system of torts, the Scots law of delict operates on broad principles of liability for wrongdoing: 'there is no such thing as an exhaustive list of named delicts in the law of Scotland. If the conduct complained of appears to be wrongful, the law of Scotland will afford a remedy even if there has not been any previous instance of a remedy being given in similar circumstances'. While some terms such as assault and defamation are used in systems of tort law, their technical meanings differ in Scottish delict.

In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negligence.

Loss of consortium is a term used in the law of torts that refers to the deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor. In this context, the word consortium means "(the right of) association and fellowship between two married people". Damages may be claimed under three theories: incurred medical costs or those yet to be incurred by the plaintiff, the loss of an injured spouse's services, and loss of society.

Tortious interference, also known as intentional interference with contractual relations, in the common law of torts, occurs when one person intentionally damages someone else's contractual or business relationships with a third party, causing economic harm. As an example, someone could use blackmail to induce a contractor into breaking a contract; they could threaten a supplier to prevent them from supplying goods or services to another party; or they could obstruct someone's ability to honor a contract with a client by deliberately refusing to deliver necessary goods.

<span class="mw-page-title-main">Personal injury</span> Legal term for an injury to a person

Personal injury is a legal term for an injury to the body, mind, or emotions, as opposed to an injury to property. In common law jurisdictions the term is most commonly used to refer to a type of tort lawsuit in which the person bringing the suit has suffered harm to their body or mind. Personal injury lawsuits are filed against the person or entity that caused the harm through negligence, gross negligence, reckless conduct, or intentional misconduct, and in some cases on the basis of strict liability. Different jurisdictions describe the damages in different ways, but damages typically include the injured person's medical bills, pain and suffering, and diminished quality of life.

<span class="mw-page-title-main">Canadian tort law</span> Aspect of Canadian law

Canadian tort law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec. Outside Québec, Canadian tort law originally derives from that of England and Wales but has developed distinctly since Canadian Confederation in 1867 and has been influenced by jurisprudence in other common law jurisdictions. Meanwhile, while private law as a whole in Québec was originally derived from that which existed in France at the time of Québec's annexation into the British Empire, it was overhauled and codified first in the Civil Code of Lower Canada and later in the current Civil Code of Quebec, which codifies most elements of tort law as part of its provisions on the broader law of obligations. As most aspects of tort law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, tort law varies even between the country's common law provinces and territories.

<span class="mw-page-title-main">Tort reform</span> Legal reforms aimed at reducing tort litigation

Tort reform consists of changes in the civil justice system in common law countries that aim to reduce the ability of plaintiffs to bring tort litigation or to reduce damages they can receive. Such changes are generally justified under the grounds that litigation is an inefficient means to compensate plaintiffs; that tort law permits frivolous or otherwise undesirable litigation to crowd the court system; or that the fear of litigation can serve to curtail innovation, raise the cost of consumer goods or insurance premiums for suppliers of services, and increase legal costs for businesses. Tort reform has primarily been prominent in common law jurisdictions, where criticism of judge-made rules regarding tort actions manifests in calls for statutory reform by the legislature.

Feres v. United States, 340 U.S. 135 (1950), combined three pending federal cases for a hearing in certiorari in which the Supreme Court of the United States held that the United States is not liable under the Federal Tort Claims Act for injuries to members of the armed forces sustained while on active duty and not on furlough and resulting from the negligence of others in the armed forces. The opinion is an extension of the English common-law concept of sovereign immunity.

The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:

Conversion is an intentional tort consisting of "taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession". In England and Wales, it is a tort of strict liability. Its equivalents in criminal law include larceny or theft and criminal conversion. In those jurisdictions that recognise it, criminal conversion is a lesser crime than theft/larceny.

<span class="mw-page-title-main">Death on the High Seas Act</span> United States admiralty law enacted by the United States Congress in 1920.

The Death on the High Seas Act (DOHSA) is a United States admiralty law enacted by the United States Congress in 1920. The Act functions as a wrongful death statute, providing a cause of action for surviving family members when an individual dies as a result of a wrongful act or disaster in international waters. These individuals may make a civil claim for damages against the "person or vessel responsible" for the wrongful or negligent act that caused the death. DOHSA also applies to negligent acts causing death that occur after the initial accident, if the decedent was on the high seas at the time the negligence began. Though DOHSA is generally the exclusive remedy available for certain wrongful death claims under maritime law, surviving relatives may make concurrent claims under DOHSA and the Jones Act in some circumstances.

<span class="mw-page-title-main">Tort law in India</span> Aspect of Indian law

Tort law in India is primarily governed by judicial precedent as in other common law jurisdictions, supplemented by statutes governing damages, civil procedure, and codifying common law torts. As in other common law jurisdictions, a tort is breach of a non-contractual duty which has caused damage to the plaintiff giving rise to a civil cause of action and for which remedy is available. If a remedy does not exist, a tort has not been committed since the rationale of tort law is to provide a remedy to the person who has been wronged.

<i>Read v Great Eastern Railway</i> English tort authority on damages fully satisfied

Read v Great Eastern Railway (1868) LR 3 QB 555 was an English tort law case which created a strong authority enshrining the principle that if a deceased person has settled a damages claim discharging all the claims and causes of action against the defendant in full satisfaction within their lifetime, no further action can be brought by their representatives if the injured person subsequently dies from the same injuries. It was held that a claim for loss of dependency under section 1 of the Fatal Accidents Act 1846, also known as "Lord Campbell's Act", could not be brought if a person died from the effects of an injury for which they had settled a claim during their lifetime, as they would not be capable of any fresh cause of action.

References

  1. ↑ "Wrongful death action". Legal Information Institute. Cornell Law School. Retrieved 7 June 2017.
  2. ↑ Gross, Bruce (Spring 2005). "Death throes: professional liability after client suicide". Annals of the American Psychotherapy Association: 34. Retrieved 13 September 2017.
  3. ↑ 22A Am. Jur. 2d Death § 1.
  4. ↑ Smedley, T.A. (June 1960). "Wrongful Death—Bases of the Common Law Rules". Vanderbilt Law Review . 13 (3): 605–624. Retrieved 10 December 2022.
  5. ↑ Moragne v. States Marine Lines, Inc. , 398 U.S. 375, 90 S.Ct. 1772 (1970).
  6. ↑ Williams, Robert A. "Johnson v. University Hospitals of Cleveland: Public Policy over Traditional Principles" (PDF). Akron Law Review. 23 (3): 599. Archived (PDF) from the original on 6 September 2015.
  7. ↑ Restatement (Second) of Torts § 925 (1979).
  8. ↑ 22A Am. Jur. 2d Death § 3.
  9. ↑ Ayres, B. Drummond (11 February 1997). "Jury Decides Simpson Must Pay $25 Million in Punitive Award". The New York Times . Retrieved 13 September 2017.
  10. 1 2 Davies, Stephen (22 October 2009). "Proof on the balance of probabilities: what this means in practice". Practical Law. Thomson Reuters.
  11. ↑ Mitchell, Tony (23 July 2014). "Australia: Does a waiver wave away all rights to make a claim for restitution?". Mondaq. Retrieved 13 September 2017.
  12. ↑ Speiser, Stuart M.; Malawer, Stuart S. (1976). "American Tragedy: Damages for Mental Anguish of Bereaved Relatives in Wrongful Death". Tulane Law Review. 51 (1). Retrieved 13 September 2017.
  13. ↑ See, e.g., "Motley v. Colley, 769 S.W.2d 477 (Mo.App. 1989)". Google Scholar. Retrieved 13 September 2017.
  14. ↑ King, E.M.; Smith, J.P. (1988). "Computing economic loss in cases of wrongful death". K4Health. Retrieved 13 September 2017.
  15. ↑ Tate v. Canonica, 180 Cal. App. 2d 898, 909, 5 Cal. Rptr. 28, 36 (1960).
  16. ↑ State ex rel. Richardson v. Edgeworth, 214 So.2d 579 (Miss. 1968).
  17. ↑ Mayer v. Town of Hampton, 127 N.H. 81, 497 A.2d 1206 (1985).
  18. ↑ R.D. v. W.H., 875 P.2d 26 (Wyo. 1994).
  19. ↑ Nolan, Donal (2012). "The Fatal Accidents Act 1846". In Arvind, T.T.; Steele, Jenny (eds.). Tort law and the legislature : common law, statute and the dynamics of legal change. Oxford: Hart Publishing. pp. 131–157. ISBN   9781782250548.
  20. ↑ "Fatal Accidents Act 1976". Legislation. National Archives. Retrieved 24 January 2023.
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