A “wrongful death” is the basis for a lawsuit – or a “wrongful death action” – against the party or parties who caused the death. The suit is filed on behalf of the surviving family members who lost the companionship, emotional support, and financial support of the person who died.

Any death that is caused by the wrongful action(s) of another can result in a wrongful death claim. Many of those claims are based upon death resulting from negligence, such as:

• A motor vehicle accident caused by another driver.
• A dangerous roadway: These claims result from deaths caused in whole or in part by the condition of the road.
• A defective vehicle, a situation that occurs when the vehicle was made with defective parts, such as malfunctioning tires and brakes.
• Other defective products, including:
  • children’s products, such as high chairs, cribs, clothing, and toys.
  • electronic appliances, kitchen appliances, and other household gadgets
  • sporting gear
  • medical devices, such as cardiac pumps and defibrillators.
• An on-the-job death caused by defective industrial machinery. (Some work injuries that result in death must be handled exclusively through the worker’s compensation system.)
• Medical malpractice: If a doctor fails to diagnose a condition, or if the doctor is careless in the level of care provided, and a patient dies as a result, a wrongful death action against the doctor is a distinct possibility. (To learn more about medical malpractice and when it can be applied, click here.)

Lastly – and most rarely – it is possible 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. The two actions, however, are not mutually exclusive; that is, a person can be prosecuted criminally for causing someone’s death (whether charged with murder, manslaughter, criminally negligent homicide, or some other theory) and that person also can be sued civilly in a wrongful death action (most famously, the O.J. Simpson murder case in 1995).

(Note: Another rare illustration of how wrongful death expands liability beyond that 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, followed by Mississippi, New Hampshire, and Wyoming.)

Frequently asked questions

Who can file a wrongful death claim?
Wrongful death claims usually are filed by a representative of the estate of the deceased, on behalf of survivors who had a relationship with the victim. Exactly who those survivors can be varies from state to state.

In all states, a spouse may bring a wrongful death action on behalf of their deceased spouse. Parents of minors also can bring a wrongful death action if their child is killed, and minors can collect compensation for the death of a parent. Where states start to disagree is whether parents of adult children can sue, whether adult children can sue for wrongful death of their parents, whether grown siblings can sue for wrongful death, or whether extended relatives like cousins, aunts, uncles, or grandparents can sue. Usually, the more distant the familial relationship is, the harder it is to get a legal remedy via a wrongful death case.

In some states, the romantic partner of the deceased may bring a wrongful death claim (marriage isn’t a requirement, in other words), as can anyone who can show financial dependence on the deceased.

Are the standards the same across the country?
No. Each state has its own wrongful death statute, and the roots of most of those laws can be traced to Lord Campbell’s Act, which was passed by the British Parliament in 1846. Additionally, the statute of limitations (time limit to file a case) differs from state to state.

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 of the deceased, or punitive damages.

The standard of proof in the U.S. typically is a preponderance of the evidence as opposed to clear and convincing or beyond a reasonable doubt.

What must be proved?
In order to hold a defendant liable, the plaintiffs (usually through the estate of the deceased victim) must meet the same burden of proof that the victim would have had to meet had the victim lived. So, using negligence as an example, this means showing that the defendant owed the victim a duty of care, that the defendant breached this duty, that the breach of duty was a direct and proximate cause of the death, and that the death caused the damages that the plaintiff is trying to recover.

What kinds of damages can be sought?
Damages in a wrongful death claim — that is, the categories of losses for which a survivor might receive compensation — include:

• The deceased person’s pre-death “pain and suffering” (this is often called a “survival” claim).
• The medical treatment costs that the deceased incurred as a result of injury before dying.
• Funeral and burial costs.
• Loss of expected income for the deceased.
• Loss of any inheritance as a result of the death.
• Value of the services that the deceased would have provided.
• Loss of care, guidance, and nurturing that the deceased would have provided
• Loss of love and companionship.
• Loss of consortium, which refers to the deprivation of the benefits of a family relationship.