Wrongful Death Actions and  Survival Actions Discussed

To understand the differences, we must first understand the definitions of each legal claim, as follows:

A wrongful death happens when a decedent dies as a result of negligence orother other bad act, or a "tort" of a defendant. The survivor, living dependent or beneficiary is allowed to recover monetary damages in certain situations.

Historic Rights of Recovery

Under English “common law”, which is where all tort law came from in America, there was no lawsuit allowed for wrongful death claims at all. The early legal scholars explained that they thought the death claims died with the decedents. The surviving family was not allowed to sue the evil doer who killed their loved one. Early America adopted the no recovery for wrongful death English common law rules however, now, most states have enacted “wrongful death” and “survival” statutes. In fact, most all states offer some form of recovery for a wrongful death pursuant to a  “wrongful death” or “survival” statute.

Jury Instructions

Wrongful death is a subspecies of tort law and allows certain individuals to recover money damages for the negligent death of a loved one under certain circumstances. Proving a negligent death case can be difficult. Jury Instructions were created for California Courts and California juries to assist them in proving the necessary elements in a negligent death in California.

CACI  3921. Wrongful Death Death of an Adult, Revised January 2006 provides;

If you decide that [name of plaintiff] has proved [his/her] claim against [name of defendant] for the death of [name of decedent], you also must decide how much money will reasonably compensate [name of plaintiff] for the death of [name of decedent]. This compensation is called “damages.”

{Name of plaintiff] does not have to prove the exact amount of these damages. However, you must not speculate or guess in awarding damages.

The damages claimed by [name of plaintiff] fall into two categories called economic damages and noneconomic damages. You will be asked to state the two categories of damages separately on the verdict form.

[Name of plaintiff] claims the following economic damages:

1. The financial support, if any, that [name of decedent] would have contributed to the family during either the life expectancy that [name of decedent] had before [his/her] death or the life expectancy of [name of plaintiff], whichever is shorter;

2. The loss of gifts or benefits that [name of plaintiff] would have expected to receive from [name of decedent];

3. Funeral and burial expenses; and

4. The reasonable value of household services that [name of decedent] would have provided.

Your award of any future economic damages must be reduced to present cash value.

[Name of plaintiff] also claims the following noneconomic damages:

1. The loss of [name of decedent]‘s love, companionship, comfort, care, assistance, protection, affection, society, moral support; [and]

2. [The loss of the enjoyment of sexual relations.]

3. [The loss of [name of decedent]‘s training and guidance.]

No fixed standard exists for deciding the amount of noneconomic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense. [Your award for noneconomic damages should not be reduced to present cash value.]

In determining [name of plaintiff]‘s loss, do not consider:

1. [Name of plaintiff]‘s  grief, sorrow, or mental anguish;

2. [Name of decedent]‘s  pain and suffering; or

3. The poverty or wealth of [name of plaintiff].

In deciding a person’s life expectancy, you may consider, among other factors, the average life expectancy of a person of that age, as well as that person’s health, habits, activities, lifestyle, and occupation. According to [insert source of information], the average life expectancy of a [insert number]-year-old [male/female] is [insert number] years, and the average life expectancy of a [insert number]-year-old [male/female] is [insert number] years. This published information is evidence of how long a person is likely to live but is not conclusive. Some people live longer and others die sooner.

[In computing these damages, consider the losses suffered by all plaintiffs and return a verdict of a single amount for all plaintiffs. I will divide the amount [among/between] the plaintiffs.]

Differences Between Survival Action and Wrongful Death Action

There are many important distinctions between a wrongful death action allowed by Code Civ. Proc. Sec. 377.60 et seq., and a survival action allowed by Code Civ. Proc. Sec. 377.30 et seq. These differences generally relate to (a) the recoverable damages  (b) the people who are allowed to recover and theories of recovery; (c) the statute of limitations and (d) rules requiring a  decedent’s personal representative in a  survival action.

Funeral and Burial Expenses

Since wrongful death cases are supposed to pay someone for the fatality and loss, those persons may recover funeral and burial costs. Also, the present value of the losses of the decedent’s future financial support, the value, if any, of the loss of the decedent’s love, care, comfort and society are also included as recoverable. Unless provided by law, however, this does not include punitive damages.

Survival Claims belonged to the deceased victim before they passed away. Conversely, a survival action is a cause of action that belonged to the decedent and passed on his or her expiration to the decedent’s estate.

What Can the Survivor’s Estate Recover?

The estate can generally recover medical expenses and lost earnings incurred by the deceased before death, and in certain circumstances, punitive damages. But the estate in California courts, under all circumstances, may recover all damages allowed under Code Civ. Proc.Sec. 377.61.

Under Code Civ. Proc. Sec. 377.60, only people mentioned in the statute can recover these damages. In a survival action, the Plaintiff’s recovery may be made by any person entitled to inherit the decedent’s estate. This could be a will, or trust. (See e.g., Code Civ. Proc. Sec. 377.30 (claims pass to decedent’s successors in interest and made subject to specified provisions of probate code.)

Who Can Bring a Survival Action?

Because anyone entitled to inherit are allowed to bring a survivor’s actions, a person other than the persons entitled to bring a wrongful death action may be entitled to recover.

Statute Of Limitations to Bring the Actions

Claims made under Code Civ. Proc.Sec. 377.60 have a two-year statute of limitations as provided under Code Civ. Proc. Sec. 335.1, which begins to run on the date of death. (Witkin, 6 Summary of California L., Torts Sec.1198 (9th ed.) But in a survival action, the statute of limitations starts running on the date the claim actually arose to the deceased, and is sometimes lengthened. (See e.g., Witkin, 12 Summary of California L., Wills and Probate Sec. 491 (9th ed.); see also Code Civ. Proc. Sec. 366.1 (which provides the time limits for the action.)

Certainly these can be comlex and confusing laws to someone dealing with a tragic loss of a loved one or family member. For a better understanding of your rights, please call THE GOULD FIRM for a free consultation today at (619) 291-9858.