wrongful death

A death that is caused by the wrongful act or negligence of another and that serves as the basis for a civil action for damages on behalf of the decedent's heirs.

Death caused by a person without legal justification. Wrongful death may be the result of negligence, such as when a drunken driver hits and kills someone; or it may be intentional, as when someone kills another person with a gun. In most states, suits can be filed for damages caused by wrongful death. Much work has been done in an attempt to put a value on human life and, therefore, to determine the compensation allowable to the family of an individual who has been killed. See also Human Life Value Approach (Economic Value of an Individual Life-Evoil).

The taking of the life of an individual resulting from the willful or negligent act of another person or persons.

If a person is killed because of the wrongful conduct of a person or persons, the decedent's heirs and other beneficiaries may file a wrongful death action against those responsible for the decedent's death. This area of tort law is governed by statute. Wrongful death statutes vary from state to state, but in general they define who may sue for wrongful death and what, if any, limits may be applied to an award of damages.

Originally, wrongful death statutes were created to provide financial support for widows and orphans and to motivate people to exercise care to prevent injuries. A wrongful death action is separate and apart from criminal charges, and neither proceeding affects nor controls the other. This means that a defendant acquitted of murder may be sued in a civil action by the victim's family for wrongful death.

An action for wrongful death may be brought for either an intentional or unintentional act that causes an injury that results in death. A blow to the head during an altercation that later results in death is an injury that is intentionally caused. The driver of an automobile who unintentionally causes the death of another in an accident may be held liable for her negligence. An individual who, in violation of local law, neglects to enclose a swimming pool in his yard can be held liable for the omission or failure to act if a child is attracted to the pool and subsequently drowns.

Wrongful death statutes do not apply to an unborn fetus, as an individual does not have a distinct legal status until she is born alive. If an infant is born alive and later dies as a result of an injury that occurred prior to birth, an action may be brought for wrongful death.

Who May Sue

The individuals entitled to sue for wrongful death are enumerated in each state statute. Many statutes provide for recovery by a surviving spouse, next of kin, or children. Some states permit a surviving spouse to bring an action even in the event of a separation, but not if the surviving spouse was guilty of desertion or failure to provide support.

Ordinarily, children may bring suit for the wrongful death of their parents, and parents may sue for the wrongful death of their children. In some states, only minor children are allowed to sue for the death of a parent. Similarly, some state statutes preclude a parent from recovery for the death of an adult child who is financially independent or married.

Immunity from Suit

In the absence of a legal exception, the surviving beneficiaries may sue any person who caused the injuries that precipitated the death.

A traditional exception to this rule has been applied to family members. This doctrine is known as family immunity and means that an individual is protected from suit by any member of his family. This rule was intended to promote family harmony and to prevent family members from conspiring to defraud an insurance company. However, its strict application prevented children from legitimately collecting insurance money. Therefore, many states have discarded the strict rule of family immunity. Some limitations have been retained, such as allowing an adult child to sue a parent but not allowing a minor child to do so.

Wrongful death actions filed against state or local government will be allowed to go forward only if the state has waived its sovereign immunity, a doctrine that bars lawsuits against the government. Since the 1960s a majority of states have relinquished the right to claim sovereign immunity in many instances. Therefore, if a child drowns in a municipal swimming pool, the parents may be able to sue the city for wrongful death based on negligence.

In states that allow wrongful death actions to be brought against government, there is generally a strict notice requirement. The plaintiff must promptly notify the government that a lawsuit is contemplated in order to give the government an opportunity to estimate the potential losses to its budget. The time period for filing a notice may be as short as thirty, sixty, or ninety days. Failure to file a notice of claim precludes the possibility of a lawsuit.

The Defendant's Responsibility

In order to sue for wrongful death, it must be proven that the acts or omissions of the defendant were the proximate cause of the decedent's injuries and death. This means that the defendant's wrongful conduct must have created a natural, direct series of events that led to the injury.

An employer may be held responsible for injuries caused by an employee during the course of her employment.

Damages

The law of each state governs the amount of damages recoverable by statutory beneficiaries. Compensatory damages, which are intended to make restitution for the amount of money lost, are the most common damages awarded in wrongful death actions. Plaintiffs who prevail in a wrongful death lawsuit may recover medical and funeral expenses in addition to the amount of economic support they could have received if the decedent had lived and, in some instances, a sum of money to compensate for grief or loss of services or companionship.

Determining the amount of damages in a wrongful death action requires taking into account many variables. To compute compensation, the salary that the decedent could have earned can be multiplied by the number of years he most likely would have lived and can be adjusted for various factors, including inflation. Standard actuarial tables serve as guides for the life expectancy of particular groups identified by age or gender. The decedent's mental and physical health, along with the nature of his work, can be taken into consideration by a jury.

Damages cannot always be calculated on the basis of potential earnings because not everyone is employed. Courts have set minimum yearly dollar amounts for the worth of an individual's housekeeping and for child care services. Moreover, an additional recovery might be justified on the basis of grief and loss of companionship.

Punitive damages may be awarded in a wrongful death case if the defendant's actions were particularly reckless or heinous. Punitive damages are a means of punishing the defendant for her action and are awarded at the discretion of the jury.

Any damages recovered are distributed among the survivors subject to the statutes of each state. Courts frequently divide an award based on the extent of each beneficiary's loss.

Limitations on Recovery of Damages

Some states limit the amount of money that can be recovered in a wrongful death action. For example, many state and local governments that waive sovereign immunity set a maximum amount of damages that can be recovered for a wrongful death. However, a number of states do not limit the amount of damages for wrongful death.

International treaties limit the amount recoverable for the death of passengers on international airlines. Workers' compensation laws, which exist in some form in every state, place limits upon an employer's liability. Employers must carry insurance for their employees that compensates workers based on a legal schedule for each type of injury or for death. In return for carrying such insurance, employers are immune from negligence suits. The result is that the amount workers can recover is limited, but recovery is guaranteed for injury or death sustained in the course of employment.

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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.

Footnotes

1. ^ 22A Am. Jur. 2d Death § 1.
2. ^ Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772 (1970).
3. ^ Restatement (Second) of Torts § 925 (1979).
4. ^ 22A Am. Jur. 2d Death § 3.

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