Compensating Somebody: Wrongful Death and Survival Actions

Under the English common law, the answer for five or six centuries was “no.” Lord Ellenborough put it clearly in Baker v. Bolton: “In a civil court, the death of a human being could not be complained of as an injury.” 170 Eng. Rep. 1033 (1808). If the rule was clear, the reasons for it were less so. The scholars suggest that it was rooted in the early English “felony-merger doctrine,” which barred civil suits to recover damages for acts that constituted a felony. Felonies were punishable by death and forfeiture of the felon’s property to the crown. Since causing the death of another, either intentionally or negligently, was a felony, there would be no defendant left to sue for wrongful death, and no property from which to collect a judgment. See Moragne v. States Marine Lines, Inc., 398 U.S. 375, 382 (1970). So there was no point to such a claim.

Other reasons for the common law position were grounded in policy rather than history. Some cases argued that allowing claims for wrongful death would lead to “runaway” damages from sympathetic juries, or that it is somehow immoral to put a price on human life. S. Speiser, Recovery for Wrongful Death and Injury §1:5 (4th ed. 2005) (hereinafter “Speiser”).

Whatever the rationale for the common law rule, the result was that “it was cheaper for the defendant to kill a person than to scratch him.” Prosser & Keeton at 942. Prosser’s treatise notes the wry suggestion that this rule explains “why passengers in Pullman car berths rode with their heads to the front” and that “the fire axes in railroad coaches were provided to enable the conductor to deal efficiently with those [sic] were merely injured.” Prosser & Keeton at 942, n.24. Such speculations make the point well enough: It is manifestly indefensible to allow recovery for personal injury, but bar recovery entirely where the victim suffers the ultimate injury, death.

Although it is easy to criticize the early common law rule, most American courts initially followed it without question. In the American states, as in England, it has been the legislatures, not the courts, which have established the right to recover for wrongful death. England reversed course in 1846, when Lord Campbell’s Act authorized a cause of action for wrongful death. Since that time, all American states have enacted statutes (often referred to as “Lord Campbell’s Acts”) that authorize recovery for wrongful death.

THE STATUTORY RIGHT TO SUE

Because actions for wrongful death are based on statutes, they differ from state to state. However, many still track quite closely the language of Lord Campbell’s Act. The North Dakota statute, for example, provides:

Whenever the death of a person shall be caused by a wrongful act, neglect, or default, and the act, neglect, or default is such as would have entitled the party injured, if death had not ensued, to maintain an action and recover damages in respect thereof, then and in every such case the person who, or the corporation, limited liability company, or company which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured or of the tortfeasor, and although the death shall have been caused under such circumstances as amount in law to felony.