Survival Actions in California

When a family member dies because of another’s negligence or wrongful acts, there are two types of lawsuits that may be filed—wrongful death lawsuits and survival actions. A survival action is the lawsuit that the deceased person would have been able to bring had he or she lived, while a wrongful death action is a claim for compensation for the harms that the family of the deceased has suffered. It is important to understand the differences between the two types of lawsuit.

Wrongful death lawsuits are filed by the deceased person’s surviving spouse, child, or other dependent family members, or by the personal representative of the decedent’s estate. The harms to be compensated in a wrongful death suit are the harms suffered by those close family members as a result of the decedent’s untimely death. Damages in a wrongful death suit may include:

• Loss of financial support;
• Loss of services;
• Funeral expenses;
• Loss of companionship, comfort, assistance, and affection;
• Loss of the enjoyment of sexual relations; and
• Loss of the decedent’s training and guidance.

Punitive damages cannot be recovered in a wrongful death lawsuit.

A survival action, in contrast, is a lawsuit that the deceased person would have been able to bring had he or she survived the injuries. Survival actions can be filed by the personal representative of the deceased person’s estate, or if there is none, by the deceased person’s successor-in-interest. The successor-in-interest is the person entitled to inherit from the deceased person’s estate via will, trust, or intestacy. The successor-in-interest must file an affidavit with the court that he or she is the decedent’s successor-in-interest.

Survival actions may only be brought if the deceased person did not die immediately from his or her injuries. The law only requires a short period of survival, however. Survival actions may also include personal injury lawsuits filed by the deceased person before his or her death. These suits can be carried on by the estate, becoming survival actions.

When both wrongful death and survival actions arise from the same occurrence, they may be consolidated into one lawsuit.

The damages available in a survival action are damages that the decedent suffered before death, which would have been recoverable by the decedent had he or she survived. These may include medical expenses, lost wages, or property damage. Damages for pain, suffering, and disfigurement may not be recovered in a survival action, however. Punitive damages, which are damages awarded only in cases of egregious misconduct and are intended to punish the wrongdoer, are recoverable in a survival action.

A wrongful death lawsuit must be brought within two years from the date of death. For survival actions, the estate has two years from the date of the injury, or six months after death, whichever comes later.

The death of a loved one is a difficult time, and can be made worse if the death resulted from another person’s wrong actions. If you believe that you may have a wrongful death or survival case, please contact the experienced San Jose personal injury attorneys at Corsiglia, McMahon & Allard, L.L.P. for a free initial consultation.