Duhaime's Law Dictionary


Wrongful Death Definition:

A claim for non-economic damages for post-death loss of society and companionship and other claims relating to the death of a tort victim.

Related Terms: Actio Personalis Moritur Cum Persona, Wrongful Birth, Wrongful Life, Wrongful Pregnancy

These actions are commenced under special wrongful death statutes because under the common law, there is no right of action for survivors for their own loss as a result of someone else's death.

The Canadian equivalent of the wrongful death legislation is generally known as the "fatal accidents act" (eg. Alberta's is at canlii.org/ab/laws/sta/f-8/index.html).

In England, it is known as Lord Campbell's Act.

In the United States, these words of Madam Justice Shirley Abrahamson of the Supreme Court of Wisconsin in Batholemew v Patients Compensation Fund:

"(W)rongful death ... claims (are) for noneconomic damages for postdeath loss of society and companionship and other claims relating to the death of a tort victim....

"A wrongful death claim is a new cause of action unknown at common law. Furthermore, at common law, many claims did not survive the death of the victim or the tortfeasor.

"The rule of non-survival of actions was referred to at common law by its Latin name, action (sic) personalis moritur cum persona, a personal action dies with the person....

"At common law, a victim's claim for predeath pain and suffering did not survive the victim's death."

In Santana v. Zilog Inc., Justice Cynthia Holcomb Hall of the United States Court of Appeals noted this statutory definition contained in the Idaho statutes:

"Wrongful death actions are defined by statute in all states.... Idaho's wrongful death statute provides: when the death of a person is caused by the wrongful act or neglect of another, his or her heirs or personal representatives on their behalf may maintain an action for damages against the person causing the death, or in case of the death of such wrongdoer, against the personal representative of such wrongdoer, whether the wrongdoer dies before or after the death of the person injured."

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