Wrongful Death Basics

Wrongful Death Overview

Black’s Law Dictionary defines wrongful death as a “[c]ivil law suit filed by the deceased survivors against the organization or person felt to be responsible.” The Legal Dictionary at Law.com offers a similar definition: “[T]he death of a human being as the result of a wrongful act of another person.” The Legal Information Institute at Cornell Law School offers yet another, yet still similar definition as follows: “A civil action against someone who can be held liable for a death. Any tortious injury that caused someone's death may be grounds for a wrongful death action.”

This article will help break down, consolidate, and expand on these definitions, providing a comprehensive overview of the concept of wrongful death lawsuits: how and why they are brought, what they consist of, and who can bring them.

Civil Lawsuits vs. Criminal Cases

As defined above, wrongful death lawsuits are a type of civil lawsuit, where Party A seeks to hold Party B liable in a civil court of law for some alleged wrongful act by Party B that causes harm to Party A. Civil lawsuits are distinguishable from criminal cases in two primary ways.

First, by who the parties are. In civil lawsuits, the parties are typically both individuals or business entities, whereas in criminal cases it is a governmental entity, such as a state, prosecuting an individual or entity, known as the defendant. So, for example, in a civil lawsuit, it may be Plaintiff Smith vs. Defendant Jones, and in a criminal case, it may be The State of California vs. Defendant Jones.

The second primary difference between civil lawsuits and criminal cases is the type of action brought, or, more specifically, the punishment available against the defendant. In a civil lawsuit, one party is typically suing another party for some violation of a legal duty or responsibility, such as breach of contract or negligence. “Punishment” in a civil case primarily consists of money damages for compensation of loss, and sometimes punitive damages as punishment; and/or equitable relief, such as injunctions (restraining a party from doing something) or specific performance (requiring a party to do something).

By way of contrast, in a criminal case, the punishment for a defendant may include money, but also may include imprisonment. Imprisonment is not an available punishment in civil lawsuits, although some areas of law such as copyright law include both civil and criminal aspects. Additionally, unlike civil lawsuits, criminal actions include a defendant’s right to a jury trial, the right to an attorney, and a burden of proof that is lower than “beyond all reasonable doubt.”

Acts That Can Give Rise to Wrongful Death Lawsuits

The primary aspect of a wrongful death civil lawsuit is that some underlying act by a defendant that results in the death of another person. Wrongful death lawsuits are based in tort law, in that the underlying act committed by the defendant that led to death is known as a “tort.” Negligence is the predominant tort, but torts also include certain intentional acts, known as “intentional torts.” Intentional torts that may give rise to a wrongful death lawsuit include:

 

 

As illustrated by these examples of intentional torts, there is often overlap between civil and criminal law, in that a particular act, such as battery, may give rise to both civil liability and criminal guilt.

Another way to think of wrongful death lawsuits is that they are a function of the results of a negligent or intentional act, rather than the underlying act itself. So, for example, if a person in an automobile is injured by the negligence of another driver, this gives rise to a negligence lawsuit. If, however, a person in an automobile is killed by the negligence of another driver, this gives rise to a wrongful death lawsuit based on an underlying negligent act.

This raises an interesting point: Quite often, a plaintiff may choose to bring a civil lawsuit based on some act by a defendant that also potentially carries criminal punishment. In other words, if a defendant commits a battery and is punished in criminal court, the victim may also bring a civil lawsuit based on that same battery, potentially to recover damages for, say, medical bills.

Most often, however, civil lawsuits are brought in the wake of an unsuccessful criminal trial. A defendant is more likely to be found liable in civil court than guilty in a criminal court because, as mentioned above, the burden of proof is lower in civil court. For example, the burden of proof in a civil lawsuit is often merely “preponderance of the evidence,” which means a plaintiff need only show that a legal claim is more likely than not, to be true.

Perhaps the most infamous example of this legal phenomenon is the O.J. Simpson trial in 1994 where the defendant was acquitted in criminal court because the prosecution could not establish his guilt beyond all reasonable doubt. Nonetheless, Mr. Simpson was found liable in a civil lawsuit for the wrongful death of the two victims under the preponderance of the evidence standard.

Another interesting point is the concept of so-called “double jeopardy.” Found in the 5th Amendment of the U.S. Constitution, double jeopardy refers to the legal prohibition of trying a defendant twice for the same offense. It would appear at first glance that bringing a civil lawsuit for an act against a defendant who has already been tried for that act in criminal court would violate the Double Jeopardy Clause. However, the clause only applies to criminal offenses, not civil offenses. In other words, a defendant may not be tried twice for the same offense in criminal court but may be tried again for such offense in civil court.

Makeup of a Wrongful Death Lawsuit

All states have wrongful death statutes, and they can vary slightly from state to state. Nonetheless, elements common to most, if not all, wrongful death claims include:

  • The death of a person.
  • The death was caused by another person’s (defendant) negligent or intentional act.
  • The survival of at least one family member who has been damaged.
  • A representative of the estate (plaintiff) to bring the claim.

Inherent in the analysis is that the underlying act, in other words, the defendant’s negligence or intentional act must be established before the causation issue is even considered. The plaintiff who brings the lawsuit may recover both economic damages, such as funeral and medical expenses and/or loss of income and support, as well as non-economic damages, such as pain and suffering.

Parties in a Wrongful Death Lawsuit

A representative of the survivors who have suffered damages caused by a decedent’s death must bring the wrongful death claim. The representative is typically the executor of the decedent’s estate. The survivors are known as “real parties in interest.” Real parties in interest may include:

  • Family members, such as spouses, children, adopted children, siblings, and parents.
  • Financial dependents, life partners, and putative spouses.
  • Parents of a deceased fetus, at least in states that allow wrongful death recovery for the death of an unborn child. In other states, a child must be born alive and then die.
  • In some states, distant relatives, such as grandparents.
  • In some states, all persons who suffer financially, whether related by marriage or blood.

 

Any number of defendants may be sued for wrongful death, including persons, employers, employees, business entities, and governmental agencies, although certain government agencies and employees are immune from wrongful death lawsuits.

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