Claims of wrongful death are authorized by statute in one form or another, in all the states of the union. Understanding how it all works is another story. In California, they are brought up against a person/entity that caused the death of another human being. Family members of the decedent usually bring up wrongful death claims in a civil action under the existing statue.
Common Law Rights Distinguished
As per common law, a deceased person was not able to bring about a lawsuit, and this resulted in a loophole in which activities that caused a person to suffer injury results in civil sanction but when death occurs from activities that did not result in civil sanction. (Learn More.)
The prevailing standard of proof in most U.S. courts is normally preponderance of the evidence versus beyond a reasonable doubt or clear and convincing. In the United Kingdom and in Australia it is on the balance of probabilities. This is why its frequently simpler for families to seek justice against a person responsible for the loss of life of their family member through tort, rather than a criminal prosecution.
However, both of these actions aren’t equally exclusive. You can criminally prosecute a person that has caused the loss of life regardless if it was caused from manslaughter, murder, criminally negligent homicide, or a different theory, and you can also sue the person in civil courts for the action of wrongful death. When a business (not a person) has caused the loss of life to another person, the only available recourse is wrongful death. For instance, historically, there are some families that have attempted (some with success and others without) to bring about a lawsuit against tobacco companies for the wrongful death caused to customers.
Historical Rights of Recovery
In a majority of common law jurisdictions, they didn’t have a common law right for recovery of civil damages for wrongful death situations. Actions of wrongful death were considered to be strictly statutory. There has been a common law right recognized in some jurisdictions for the recovery of wrongful death, by reason that no current public policy exists against permitting compensation for wrongful death. Applying the principles of common law to decisions and the right to fill in loopholes in statutes has been used by jurisdictions that identify the common law right to recover compensation for situations of wrongful death.
Statutes have been enacted by many jurisdictions in order to produce a right to this type of recovery. The tort laws of each state are used to determine the issue of liability. For the foundation of wrongful death liability see Fatal Accidents Act of 1846, otherwise known as Lord Campbell’s Act. A person can have a waiver signed by participants, which will provide a certain amount of protection against lawsuits of wrongful death. Speak to Ehline Law Wrongful Death Lawyer to learn more. 888.400.9721.