When an individual is killed due to another person or company’s negligence, two types of claims can be brought against the responsible party. Those are a survival action and a wrongful death lawsuit, and the main difference between them is who is bringing the claim and the types of compensation awarded.
What Is a Survival Action?
A survival action is a lawsuit separate from a wrongful death claim, but the two can often be combined. Survival actions allow a deceased person’s estate to recover damages that the deceased would have been entitled to had they survived. For example, it can be brought if the deceased victim survived their accident and lived for a period of time before succumbing to their injuries. The representative of the deceased’s estate can then pursue a survival action to recover the following types of damages:
Accident-related medical expenses accrued before death.
Lost income up until death.
Personal property damage
Conscious pain and suffering, and emotional distress the deceased experienced between the accident and their time of death.
Conscious pain and suffering can refer to the physical pain the deceased experienced, as well as their mental suffering—for instance, feelings of fear knowing their death was imminent. When awarding pain and suffering damages, a jury will typically consider the following:
The nature, duration, and extent of the victim’s physical pain and suffering;
The victim’s mental anguish, apprehension, discomfort, or sorrow.
In cases involving a defendant (at-fault party) who acted intentionally or with extreme disregard for the safety of others, the court may choose to award punitive damages as punishment.
What Is a Wrongful Death Claim?
Wrongful death lawsuits are legal claims that are brought by the family members of a deceased person who has died as a result of the negligence or wrongful conduct of another person. Wrongful death lawsuits seek damages that the family members have suffered as a result of the death of their loved one, such as:
Funeral and burial expenses;
Loss of financial support;
Loss of services;
Loss of companionship, comfort, assistance, and affection;
Loss of sexual relations; and
Loss of the deceased’s training and guidance.
Punitive damages may also be awarded depending on the circumstances of the case.
Is There a Time Limit for Filing a Survival Action or Wrongful Death Claim?
In California, there are specific time limits, known as statutes of limitations, for filing survival actions and wrongful death claims. For survival actions, the statute of limitations is generally two years from the date of the injury or accident that led to the person’s death. This means that the deceased person’s estate must file a survival action within two years of the incident that caused their injuries, even if the victim does not die until later. For wrongful death claims, the statute of limitations is typically two years from the date of the victim’s death.
If you have lost a loved one in a preventable accident and need advice about survival actions and wrongful death lawsuits, arrange a free consultation with a trusted Fresno wrongful death attorney today.