Wrongful Death

On the civil side of the American legal system, there are three general types of monetary compensation in the wrongful death of a person: One is noneconomic losses, or the fear, anxiety, pain, suffering, and loss of enjoyment of life of deceased prior to death. The second is the economic losses suffered by the deceased, the deceased's estate, or survivors, including medical bills, funeral expenses, lost income, and the economic value of lost services. A third is “grief and sorrow,” or “grief and bereavement”—mental and emotional suffering, not of the deceased, but rather the emotional distress, grief, and sorrow to a class of people related to the victim. Some states allow such compensation to all family members, including siblings; other states restrict the “protected group” to parents and children. Despite the cold harshness of such laws, some states still deny anyone damages for grief and sorrow of a loved one. Often such grief is costly to survivors, who must undergo counseling and medical treatment for emotional distress and passing through the six stages of grief—denial, anger, bargaining, depression, guilt, and acceptance.

Wrongful death actions in some states may describe two separate and distinct legal claims. One concept is antemortem damages caused to the deceased before death (often called a survivorship claim); the other claim is for losses suffered by the estate or survivors of the deceased (technically called a wrongful death claim). To understand these concepts, it is helpful to understand some history behind the law of wrongful death and survivorship.

Wrongful Death Law in Early English Legal History

Ironically, the Anglo-American civil law of wrongful death actions has now come full circle. What in old medieval England was accepted as a right, and what 19th-century English and American courts ruled to have no legal basis, is now in 21st-century American legislatures and courts again recognized as a private right to recover damages for a fatal wrong committed on another.

In Anglo-Saxon England, a homicide in any form was regarded as a “tort,” a civil offense, or a private wrong. To prevent private retaliation or family feuds and to encourage some form of peaceful resolutions, damages for killing a person were payable to the deceased's relatives. In medieval Anglo-Saxon law, this punitive reparation, termed bot, wer, or wergild (“man's-price” or “manpayment”), was paid by the wrongdoer to the kinsman of the decedent. At first, the amount of payment was set by a kind of arbitration; later, a scale of payments was established based on the social rank of the decedent. As society's attitude toward homicide changed, so did its legal remedies. Homicide was no longer viewed as a wrong to the decedent's survivors but rather as an offense against the state. By the 13th century Year Books (medieval English law reports), the evolution for redressing wrongful death was complete—every homicide became a criminal offence. Accidental and involuntary homicide were not classed as felonies, nor was the killer subject to capital punishment. As in most felonies, the defendant's property was forfeited to the state. Such killings were called “homicides per infortunium” and were not crimes but “misfortunes.”

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