Wrongful Death
In torts, wrongful death and survival damages allow a person to recover monetary damages for the death another.
Under English common law, there was no recovery for a tort that caused death. This was justified with the “felony-merger rule,” premised on the idea that any killing was a disturbance of the King’s peace – not a wrong to the victim – thus the tort was merged with the felony. Additionally, all felonies under English common law were punishable by death and the felon’s estate forfeited to the Crown; therefore there would be nothing left for the survivor to recover anyway.
Sometime in the nineteenth century, both English and American courts enacted statutes to enable plaintiffs to recover for the wrongful death of their relatives. The statutes specified which relationships are allowed to recover, which is limited to spousal, child-parent, and some situations parent-child, siblings, and legal heirs. Over time, these statutes have been refined and relationships entitled to recovery will differ from state-to-state.
Generally, a wrongful death claim consists of four elements:
- The death was caused, in whole or part, by the conduct of the defendant
- The defendant was either negligent or strictly liable for the victim’s death
- There are survivors – spouse, child, beneficiary or dependent
- There are recoverable monetary damages
Recoverable damages under a wrongful death claim include medical and funeral costs, lost wages including future earnings, lost benefits, lost inheritance, pain and suffering, mental anguish, loss of support or companionship, general damages, and punitive damages. However, the punitive damages may not be awarded without additional evidence of malicious intent.
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