Wrongful Death Laws
For most of legal history, it was cheaper to kill someone than injure him. After an injury, the victim could sue and recover for damages; but if the victim died, no one else had the standing to sue. This all changed in the late 19th century as states created wrongful-death laws that gave families of deceased people the right to sue and recover for their loss.
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History
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In the British common law system from which the American system evolved, there was no civil action for wrongful death. The decision of Lord Ellenborough in the 1808 case of Baker v. Bolton was that the death of a human being could not be cited as an injury in a complaint by another. For more than 50 years, the American system adhered to this decision, longer even than the British courts. Eventually, individual states began to pass laws making wrongful death a cause of action in civil cases.
Identification
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Wrongful death is a claim brought by the estate of a deceased person against the party whose negligent act or omission caused the death. The plaintiff's burden of proof is to show by the preponderance of evidence (much easier to prove than "beyond a reasonable doubt") that the defendant failed to take reasonable precautions or acted in violation of an implied standard of care to the deceased. If it can be shown that the defendant intended to cause harm, or acted with reckless disregard of foreseeable risk, this is also sufficient.
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Survivorship
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Most state wrongful-death laws limit who can file such suits. Generally, only survivors of the deceased can file a wrongful-death suit; that is, immediate family members or a spouse. Many states require the estate's personal representative to bring the suit, or allow relatives to sue only if the personal representative has since died. A minority of states, including Vermont, Connecticut and California, allow same-sex domestic partners to bring a suit for wrongful death.
Recovery Strategies
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The two types of damages that can be claimed in a wrongful death suit are loss to the estate and loss to the survivors. Losses to the estate include future earnings, burial expenses and investment income. All such damages are paid directly to the estate, where it is available to the estate's creditors. Additionally, damages to the survivors can be sought for the loss of contributions or property which it can be shown that the decedent would have given individual survivors based on actual contributions made, like allowance, wages (if employed by the decedent) and gifts. Such recovery is paid directly to the survivors and is not available to estate creditors.
Punitive Damages
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Punitive damages are those assessed to punish the defendant for intentional reckless behavior and to discourage such future action. Generally, punitive damages cannot be assigned in wrongful-death suits, which limits the recovery to the actual damages that can be shown in the manner described above. A minority of state laws, however, explicitly allow recovery of punitive damages in cases of serious or malicious wrongdoing. In a few other states where punitive damages are not expressly forbidden, courts have decided to make them available.
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References
Resources
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