Wrongful death claim
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. The claim is the result of 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.
Unlike most criminal law cases, private parties bring the suit. In principle, the defendant can refuse to testify on the grounds of self-incrimination but if a defendant invokes this right, the defendant has presented no case and the plaintiff automatically wins the case.
The standard of proof is typically preponderance of the evidence as opposed to clear and convincing or beyond a reasonable doubt. For all the above reasons, it is often easier for a family to seek retribution against someone for wrongful death in tort than a proper criminal law conviction. It should be noted, however, that 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, if not all states in the United States, there was no common law right to recover civil damages for the wrongful death of a person. However, now the states have each enacted statutes to create a right to such recovery. 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.
Conditions for Filing Wrongful Death Claim
The death must have been caused, in whole or in part, by the defendant's conduct, even though there was no direct intention to kill the victim. The defendant must have been deemed negligent or strictly liable for the victim's death. Also the deceased has dependent party such as family members who have suffered from emotional and monetary damages as a result of the death. [1]
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