Wrongful Death Versus Survival Action: Why You Should Know the Difference
When a loved one dies because of the negligence of another, California law provides for two different types of lawsuits that can be brought against the wrongdoer. One type of lawsuit is known as a “wrongful death” lawsuit and is brought under California Code of Civil Procedure §377.60. The other is known as a “survival action” and is brought under California Code of Civil Procedure §377.30. If you are considering your legal rights because of the untimely death of a family member, it is important to know the difference between the two types of lawsuits and what you are entitled to under each one.
A wrongful death lawsuit may be filed by the personal representative of the deceased’s estate, or by the decedent’s surviving spouse, children or other dependent family members. The damages that are recoverable according to statute are, “under all the circumstances of the case, [such damages as] may be just, but may not include damages recoverable under Section 377.35 [the Survival Statute].” The courts have interpreted the wrongful death statute to mean that the family can ask for compensation due to loss of support, loss of services, funeral and burial expenses, loss of companionship and sexual cohabitation. However, it is important to note that punitive damages are not recoverable under the wrongful death statute.
A survival cause of action can be filed by the estate’s personal representative, or if none has been appointed, by the decedent’s successor-in-interest. A survival cause of action can only be brought if the decedent did not immediately die from his injuries. However, if the deceased lived for even a short time between the accident and his or her death, then a survival cause of action may be appropriate. Damages recoverable under the statute include “the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.” Essentially, the survival statute allows one to “step into the shoes” of the deceased and recover the damages the deceased person would have been entitled to had they lived, including medical expenses and lost wages, as well as penalties, punitive or exemplary damages.
Even though the two statutes represent separate and distinct actions, they may be consolidated into one lawsuit where appropriate.
If you have lost a family member because of the wrongdoing of another, you should consider filing either a wrongful death or survival action lawsuit, or both if the circumstances permit. While no amount of money will bring back a loved one, strong and competent legal representation may help to offer closure and to ease the financial stress involved after such a loss. The Boesch Law Group and attorney Philip W. Boesch, Jr. have successfully represented both plaintiffs and defendants in wrongful death actions from automobile accidents, explosions, product defects, train collisions, and airplane crashes. To learn more about how we may be able to assist you in your time of need, please contact one of our Los Angeles attorneys today: (310) 578-7880.
DISCLAIMER: The materials on this website are for general information purposes only and should not be construed as legal advice, legal opinion or any other advice on any specific facts or circumstances. Readers should not act or refrain from acting upon this information without seeking professional advice.
Transmission of information on or by use of this website is not intended to create, and receipt does not constitute, a lawyer-client relationship between the sender and receiver. Such communications will not be treated as confidential. Photographs and other graphics may be for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.