Modified: October 29, 2022

A Short History of Wrongful Death Law

Claims of wrongful death are statutory creatures in one form or another. Understanding how it all works is another story. In California, a person/entity that caused the death of another human being is a typical wrongful death defendant. Family members of the decedent usually bring wrongful death claims in a civil action under the existing statute for their state.

Common-Law Rights Distinguished?

As per common law, a deceased person could not bring about a lawsuit, which resulted in a loophole. Because of this loophole, it was said that the “claim died with the decedent.” So a living, brain-dead victim was worth a lot, and a dead person was worth nothing at all. But this caused a lot of bereaving survivors to engage in revenge killings.

After all, normally, activities that caused a person to suffer injury resulted in civil sanctions. But that was all changed in American courts at the turn of the century to try and end this pound-of-flesh dilemma.

The Preponderance of The Evidence or Reasonable Doubt Standard?

The prevailing standard of proof in most U.S. courts is usually preponderance of the evidence versus clear and convincing beyond a reasonable doubt. It is on the balance of probabilities in the United Kingdom and Australia. So this is why it’s frequently simpler for families to seek justice against a person responsible for the loss of the life of their family member through tort rather than a criminal prosecution.

Criminal Versus Civil.

Neither criminal nor civil penalties aren’t equally exclusive. The state can criminally prosecute a person that has caused the loss of life for murder. So regardless of manslaughter, murder, criminal homicide, or a different theory, jail-time and fines are the usual penalties. But victims who lived can sue their family member’s killer in most state civil courts for the action of wrongful death.

Also, when a business (not a person) has caused the loss of life to another person, the only available recourse is wrongful death. Most District Attorneys won’t file a murder case against a corporation. But families have brought lawsuits against tobacco companies and other killers. Michael Piuze represented some victims. This excellent lawyer has won billions for wrongful deaths caused by Big Tobacco’s customers.

Historical Rights of Wrongful Death Recovery.

In most common law jurisdictions, there was no survivor’s right to recover civil damages for a negligent killing. Hence, the death claims died with the victim. So actions for wrongful death became strictly statutory creations. Modernly, most jurisdictions authorize a civil recovery of wrongful death. Also, no current public policy exists against permitting compensation for wrongful death.

Applying common law principles to court decisions is how modern wrongful death law has developed. Filling in loopholes based upon these principles is how jurisdictions identify standard law recovery rules that could apply. So basically, the statutes still rely on the old formulas under common law for situations of wrongful death.

As noted above, the tort laws of the state where the death occurred will determine issues such as legal liability. Noteworthy here, the foundation of wrongful death liability springs from an English Lord named “Campbell.” (see Fatal Accidents Act of 1846, otherwise known as Lord Campbell’s Act.)

Are There Any Defenses To Wrongful Death Lawsuits?

Yes, the traditional defenses to any civil case apply. However, another compelling reason allows a court to decide whether the case can proceed. Waivers are heavily relied upon in cases of dangerous activities, like horse riding, boxing, etc.

Often a carnival ride operator or sports club manager will seek signed liability waivers to insulate themselves from a wrongful death lawsuit. Sometimes these are enforceable as a defense, and other times they are not enough to avoid liability. However, waivers provide varying degrees of protection against lawsuits of wrongful death.

Top Notch American Injury Lawyer, Michael Ehline

Michael Ehline

Michael is a managing partner at the nationwide Ehline Law Firm, Personal Injury Attorneys, APLC. He’s an inactive Marine and became a lawyer in the California State Bar Law Office Study Program, later receiving his J.D. from UWLA School of Law. Michael has won some of the world’s largest motorcycle accident settlements.

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