The claim is brought in a civil action usually by close relatives. As counted by statute under common law a dead person cannot bring a suit, and this created a loophole in which activities that resulted in a person’s injury would result in civil sanction. But activities that resulted in a person’s death would not the standard of proof in the United States is typically preponderance of the evidence as opposed to clear and convincing or beyond a reasonable doubt.
In Australia and the United Kingdom, it is on the balance of probabilities for this reason it is often easier for a family to seek retribution against someone who kills a family member. Through tort than a criminal prosecution however the two actions are not mutually exclusive, a person may be prosecuted criminally for causing a person’s death. Whether in the form of murder manslaughter, criminally negligent homicide or some other theory and that person can also be sued civilly.
In a wrongful death action as in the OJ Simpson murder case wrongful death is also the only recourse available in the United States. When a company not an individual causes the death of a person for example, historically families have tried both successfully and unsuccessfully to sue tobacco companies for wrongful deaths. Of their customers in most common law jurisdictions there was no common law right to recover civil damages for the wrongful death of a person. Wrongful death actions were strictly statutory. Some jurisdictions have recognized a common law right of recovery for wrongful death reasoning that there is no present public policy against allowing recovery for wrongful death.
Jurisdictions that recognize the common law right to recovery for wrongful death have used the right to fill in gaps in statutes or to apply common law principles to decisions. Many jurisdictions enacted statutes to create a right to such recovery. The issue of liability will be decided by the tort law the given state, each state has different laws regarding wrongful death claims. In most states the statute of limitations, time limit to file a case varies according to how the death occurred.
For example, in Oregon many wrongful death claims have a statute of three years but there are many exceptions including when alcohol is involved. When a public body is involved or in product liability claims (see the fatal accidents at 1846) Lord Campbell’s act for the origin of wrongful death. Liability to an extend people can protect themselves from wrongful death lawsuits by having the participants sign a waiver.
One of the most difficult wrongful death issues and a particularly poignant illustration of how wrongful deaths expands liability beyond that at common law is whether a wrongful deaths claim can be founded upon intentional infliction of emotional distress. That caused the decedent to commit suicide. The first authority to allow such a claim was California in 1960 followed by Mississippi New Hampshire and Wyoming.