At 7:30, you kiss your spouse before you each head off to work. At 8:15 you get a call from the emergency room that your spouse has been involved in an accident. As you rush to the hospital, you don’t dare entertain the nagging fear that something serious has happened. Upon your arrival, you learn that they didn’t survive. The injuries were too severe. They are gone. Later, you learn that they were run off the highway by a texting motorist. What do you do once the shock wears off? The state may decide to prosecute the motorist for criminal negligence or manslaughter, but if they don’t? Even if they do pursue the case in the criminal court, do you have any other options?
Wrongful death is a claim in common law jurisdictions (where the law is developed by judges through decisions of courts and similar tribunals, as opposed to statutes or regulations) against a person who can be held liable or responsible for a death. Under common law, because the deceased person cannot bring suit, there is a loophole in which activities that resulted in the person’s death may be prosecutable.
The burden of proof (the obligation of a party to prove its allegation) in a wrongful death case is typically a preponderance of the evidence (more likely true than not) as opposed to clear and convincing (highly and substantially more probable to be true than not) or beyond a reasonable doubt (proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs).
Due to the lessened burden of proof, it is often easier for family to seek retribution against someone who kills a family member through tort (a civil wrong) than a criminal prosecution. It is important to note that the two causes of action aren’t mutually exclusive. Because the state may pursue the motorist in criminal court, you may still pursue the motorist in civil court, too.
Wrongful death is also the only recourse available in the United States when a company, rather than an individual, causes the death of a person. It can be difficult to file suit against a company, especially if the company is large, as they are generally well protected with contracts and staff attorneys. That is why it is particularly important to speak with an attorney as soon as possible after losing a family member.
ABOUT THE AUTHOR
Attorney and Counsellor at Law
Dominic primarily practices in the areas of civil litigation and personal injury. He focuses his practice on defending the rights, property, and interests of those who have been injured by the actions of others.