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The Tort of Wrongful Death

Colleen is an attorney in the United States, and a solicitor on the roll in England and Wales.

Edna St. Vincent Millay

Edna St. Vincent Millay


A valid claim for wrongful death can range from premeditated, first-degree murder, to a vehicular accident by a first-time driver. Evidence of the legitimacy of this type of claim and its appropriate sentence are shown via the misconduct of a defendant which resulted in death.

Wrongful death constitutes the civil counterpart of murder in criminal law. Criminal and civil cases diverge in that the standard of proof in a criminal case hinges upon proof beyond a reasonable doubt, as to the culpability of a defendant. In tortious terms, this standard is slightly more flexible, in that in order for a plaintiff to prevail, a preponderance of evidence must be shown.

The term “liability” rather than “guilt” is utilised in civil court judgement. A further fact needed to substantiate such a claim consists of evidence of strong ties between the plaintiff and deceased, rendering the death likely to cause the plaintiff to endure overpowering anguish.

For some time now, only spouses, children represented by parents, and parents of the deceased were accepted as claimant. As the nuclear family has altered greatly during the last half century, these boundaries have expanded, and may widen further, as various types of relationships could become viewed as having the same intensity.

 O.J.Simpson (born July 9 1947) is a former American football player

O.J.Simpson (born July 9 1947) is a former American football player

Wrongful Death Litigation

Tragically, the 1997 case of sports hero O.J. Simpson of the murder of his estranged wife Nicole and a young male visitor Ron Goldman will almost certainly be the template for decades to come, in terms of legal precedents. While a criminal jury deemed him not guilty, a later civil claim by his victims’ families found him to be liable.

The latitude of this type of claim raises the question as to the fairly small number of such litigations. The answer is nearly always financial: in a word, money. In human terms, it is far too simplistic and cynical to view any wrongful death claim as based upon mercenary incentives. Still, legal representation involves a lawyer‘s reasonable expectation of a fee proportionate to the effort involved.

Furthermore, at the core of any such claims, the plaintiff must speak for the deceased. Thus, a lawyer defending a wrongful death claim is impelled to argue issues relevant to the rights of a phantom. It is only worth while for a lawyer to bring a claim if the defendant can be shown to have a “deep pocket”, in terms of corporate assets and/or insurance coverage.


Psychological Aspects of Wrongful Death

Historically, courts have been prepared to accept wrongful death claims if a physical cause can be shown to have brought about the death of the deceased. Emotional or psychological claims fell outside the judicial rubric.

It was not until the 1960 case of ‘Tate v. Canonica’, that a claim attributing the suicide of an employee due to harassment by co-workers, was deemed worthy, by a civil court, of falling within this purview

Here, the widow of Mr. Tate brought a claim on behalf of both herself and the couple’s children. Mrs. Tate alleged her husband’s suicide stemmed directly from threats, ridicule, and demeaning remarks, made at his workplace on a continuous basis.

Prior to this case, whatever the alleged provocation, the act of taking one’s own life was viewed as too far beyond the foresee-ability of a corporate employer. Still, while the court did not find the pivotal element of causation to have brought about the suicide of Mr. Tate, judicial debate as to this allegation provided a precedent for subsequent claims.


A Case of First Impression

When change in the legal system occurs, a court is forced to evaluate existing laws in order to evaluate what alterations might improve the course of both legal and moral justice.

Each successful claim, supported or evoked by this precedent, places its footprint upon a trail, which, in time, can establish a legal precedent. As allegations of bullying in various forms increase in prevalence, the milestone of the Tate case seems likely to gain heightened significance.

The Sunshine and Savagery of the 1960s

Throughout America and various parts of Europe, the designated ‘Age of Aquarius’ seemed to offer a sense of universal trust, encapsulated by the spontaneity of the Woodstock experience.

Disappointingly soon, it grew far too clear, to those who failed to succumb to its seeming welcome, the ceaseless urging to “Do your own thing”, crystallised into, just as long as it is our thing, and you do not deviate from it in dress, language, or beliefs.

Barely beneath the gauze of love beads, peace bells and bouquets of wildflowers, lurked the threat, “Be cool, or be damned to a high school, and even university life of social exclusion.”


A Mother’s Lawsuit Based Upon the Death of Her Son

Many devotees of what became denoted “The Human Potential Movement” found its various avenues of self expression to be beneficial. Yet a number of these therapies generated a level of pain which, at times, proved deadly.

This extremism was illustrated in the case of ‘Estate of Jack Slee v. Werner Erhard’. Here, the plaintiff’s mother brought a wrongful death claim against the defendant, following her son’s death resulting from his treatment at an EST (Erhard Seminars Training).

In 1971, Werner Erhard created the EST, program. He and his followers promoted this process as having the power to release individuals from various types of anxieties, often through ultra-confrontational methods.

A university graduate, accepted into a law school, Mr. Slee postponed his law school entry, apparently in an attempt to learn to deal with adversaries in a way in which both parties could retain a sense of self-respect and integrity. On Mr Slee’s entry application to EST, he stated his reasons for joining as rooted in his quest to develop his ability to articulate his position in a definite but amenable way: compromise rather than confrontation.

Werner Erhard (Born September 5 1935)

Werner Erhard (Born September 5 1935)

When Trust Becomes an Inadvertent Tool of Toxicity

Mr. Slee proved ill-equipped to withstand the rigours of his designated EST treatment. After one 16-hour session, Mr. Slee collapsed on the stage where he was meant to improve his skills.

The jeopardising potential of this treatment was indicated by its being designated “the danger process”.

Observing Mr. Slee’s approaching collapse, an EST staff member hired in order to deal with such crises, caught him before he collapsed upon the floor of the stage. EST personnel then telephoned for immediate medical aid. By then, as Mr. Slee had stopped breathing, efforts to resuscitate him by EST staff proved futile. Having been transported to a nearby hospital, a short time later, he died, reportedly due to unspecified causes.

A Viable Wrongful Death Claim?

An autopsy indicated no apparent cause of death beyond a sudden cardiac arrest. The question then became what had caused this cardiac failure in a 26-year-old man, with no history of such concern. Following this demise, Mr. Slee’s mother brought a claim for wrongful death against the EST Corporation.

After journeying through various courts, this cause of action was eventually adjudicated by the U.S. Supreme Court. During its legal history, various theories were set forth by way of explanation. Nonstop harassment, one expert maintained, could result in the sudden stoppage of the cardiac muscle. Still, the defendant’s medical experts, contended thousands of participants in the EST training had reported astounding uplifts in various areas of their lives.

The jury, while accepting the implosive methods utilised by EST as a feasible factor in the demise of Mr. Slee, could not conclude this type of confrontation to have been a sufficiently substantial factor in his death to justify a financial award.


Honesty as a Help in Starting The Healing Process

In some suits for wrongful death, a gentle but straightforward explanation by a doctor might begin the understanding needed in order to facilitate the slow but inevitable process of easing through the horror of early grief. These needs for honesty and compassion were voiced by Sandra Gilbert in her memoir, ‘Wrongful Death’. According to this account, the case of Gilbert v. Regents of California, the evasive callousness of a trusted surgeon exacerbated the anguish of mourning.

Sandra Gilbert (author)

Sandra Gilbert (author)

On February 11 1991, her husband Elliot, a professor, entered a university medical centre for a straightforward prostate procedure. At 60 years of age, he was in overall good health. Mrs. Gilbert, also a faculty member at this university, had, along with her husband, met and spoken with the head of the surgical unit, the physician who would conduct this surgery.

Both Mr. and Mrs. Gilbert felt a rapport with him, combined with their belief in his abilities, and Mr. Gilbert’s uplifting statement, repeated several times, perhaps as a type of heartening mantra, “The head of medicine can’t kill the head of English.”

When Trust Seems Exploited

Hence, prior to his operation, leaving her husband in the surgeon's care, Mr. Gilbert’s wife and daughters felt no more fear than the usual apprehension to be expected at the outset of any potentially serious procedure.

Still, having sat in the waiting area during this process, the Gilberts felt confused when, having surpassed the needed number of hours, the surgeon seemed irritated by their inquiries as to the after-effects of Mr. Gilbert’s operation.

Eventually, when more-or-less coerced into speaking with them, this surgeon stated, “Dad had a heart attack.” He offered no further explanation, nor the slightest effort to console.

The Gilberts found this brusqueness bewildering. Still, their belief in this surgeon’s integrity was such as not to question him further right then. Surely in time he would provide a more thorough explanation. Thus, it was with reluctance that, when only basic details could be gleaned, and the dismissiveness towards them continued, their bewilderment began to darken into suspicion.


Attempted Concealment Results in Alarm

In time, the Gilberts’ uneasiness was forced to foment into a fear of deception. No aspect of Mr. Gilbert’s medical history, nor the appearance of his corpse, indicated the slightest evidence of cardiac difficulties due to this type of surgery.

Eventually, having obtained a number of delayed documents, Sandra Gilbert was able to ascertain her husband had, in truth, bled to death in the recovery room. Further research clarified, almost certainly, this bleeding-out could have been halted by vital treatment, provided within the specified time frame.

Given no other answer, Mrs. Gilbert could only conclude her husband, always irked by a sudden awakening, aroused from drugged numbness into increasing pain, had been rude enough to post-operative staff to allow them to feel justified in leaving him to himself until he proved less ill-tempered.

Although doubtlessly intending to return to him later, the needs of more docile patients seemed to have taken priority over for Mr. Gilbert’s needs. Hence, he bled to death due to their negligence.

Ultimately, it is the surgeon who is responsible for ascertaining the necessary procedures are dealt with in a professional way, despite any lapse in politeness on the part of a patient

Neither the surgeon himself, nor the hospital as a whole, could disclaim responsibility for lethal neglect. Ultimately, the documentation and testimony were sufficient for the hospital to agree to a significant settlement. A component of this agreement consisted in the fiscal amount being undisclosed to the public.

© 2017 Colleen Swan


Colleen Swan (author) from County Durham on June 16, 2017:

Hi Shyron, It is always heartening to hear from you. This is an unusual tort and enjoyable to research. Thank you again for your warm words. Colleen

Shyron E Shenko from Texas on June 15, 2017:

Interesting and informative read Colleen. So glad to see you, I have missed you.

Blessings my friend.

Colleen Swan (author) from County Durham on June 15, 2017:

Hi Larry, Thank you for looking in. Glad you enjoyed this article. Colleen

Larry Rankin from Oklahoma on June 15, 2017:

Very engaging analysis.

Colleen Swan (author) from County Durham on June 14, 2017:

Thank you Cameron. I am happy you found this interesting. It is a sad subject that has to be faced with legal redress.

Cameron Eittreim from Oklahoma on June 14, 2017:

Wonderful article, great job and interesting read.