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DANA B. TASCHNER

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  Wrongful Death  
 

Wrongful death is a claim in tort against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives. Unlike criminal law, private parties may bring the suit. The defendant has fewer due process and Constitutional protections such as immunity or the right to refuse to give testimony. The standard of proof is typically preponderance of the evidence as opposed to clear and convincing or beyond a reasonable doubt. For all the above reasons, it is often easier for a family to seek retribution against someone for wrongful death in tort than a proper criminal law conviction. It should be noted, however, that 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 a technical legal matter, a wrongful death claim is not a tort claim. In most, if not all states in the United States, there was no common law right to recover civil damages for the wrongful death of a person. However, now the states have each enacted statutes to correct this deficiency in the law so that there is a right to such recovery. It is true that the issue of liability will be determined by the tort law of a given state, but this is only because the statute incorporates the tort law as the law of liability. For this reason, a wrongful death claim does share much in common with a tort claim, but it is still grounded in statute; not common law tort.


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