Any fatality caused by the wrongful acts of another may result in a wrongful death claim. Many wrongful death claims are based upon death resulting from negligence, for example following a motor vehicle accident caused by another driver, a dangerous roadway or defective vehicle, or medical malpractice. Dangerous roadway claims result from deaths caused in whole or in part by the condition of the roadway.
In most common law jurisdictions, there was no common law right to recover civil damages for the wrongful death of a person. Under common law, a dead person cannot bring a suit, and this created an anomaly 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. Some jurisdictions recognized a common law right of recovery for wrongful death reasoning that “there is no present public policy against allowing recovery for wrongful death.” In other jurisdictions the cause of action did not exist until the passage of a wrongful death statute.
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.[8] Many jurisdictions enacted statutes to create a right to such recovery. The issue of liability will be determined by the tort law of a given state or nation.
It may be possible for a family to seek retribution against someone who kills or is accused of killing a family member through tort than a criminal prosecution, which has a higher burden of proof. 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 O.J. Simpson murder case)
