Wrongful Death Claims vs. Survival Actions

If your loved one died because of someone else’s wrongful actions, your family should look to maximize your financial compensation. When someone else was responsible for the death of your loved one, they must pay for all the damages they caused. The team at Horton & Mendez Injury Attorneys can help your family recover top dollar for your claim.

There are two entities that can suffer from the accident:

• The deceased person themselves before they died
• The family of the deceased person must live their lives without the contribution that their family member made

The Elements of a Wrongful Death Claim

Although the facts of the two cases are the same, they measure different damages. The elements of a wrongful death claim are as follows:

• Someone died.
• The death was due to the wrongful actions of another person or party.
• Your family suffered damages from the wrongful death.

A wrongful death claim belongs to the family. Losing a loved one and the damages that accompany it is the family’s personal injury. Thus, wrongful death damages are intended to compensate the family for what they lost.

Damages in a Wrongful Death Claim

The elements of a wrongful death claim focus on what the family has lost. Specifically, the family may have the following losses in the wake of their loved one’s death:

• The wages that the family would have earned and provided for the family had they continued working
• The support and guidance that the deceased person provided
• The loving relationship that they had with their family member
• The physical relationship with the deceased
• The costs of the funeral and burial

In North Carolina, the personal representative may file a wrongful death claim. The proceeds are distributed in accordance with the order set out in the state’s intestate succession law, and they do not become part of the estate. It does not matter whether a lawsuit was filed or a settlement was reached with the insurance company.

A Survival Action Compensates for the Deceased Person’s Damages

It is an incorrect assumption to think that the deceased person did not suffer any damages. Even if they died relatively soon after the accident, they still were harmed between the time of their injury and their death. Just because the accident victim died does not mean the responsible party can get away without paying for these damages. However, the accident victim themselves is no longer living and cannot file the suit in their name.

The survival action covers damages that began to be incurred at the moment of the accident. The period stops when the family member dies, and the damages began to be suffered by the family.

Damages in a survival action can include:

• The medical costs necessary to treat the decedent before they died
• The pain and suffering that they endured between the time of the injury and death
• The lost wages that they will have earned after the injury (and before they died)
• The emotional trauma and distress that they suffered (these damages can often be recovered if the deceased person had any awareness of the impending accident, even if they died relatively shortly thereafter)

The survival action does belong to the estate, and the proceeds are divided in accordance with the terms of the will.

Two Separate Legal Cases That Are Almost Always Tried Together

Technically, a wrongful death lawsuit and a survival action are two separate legal cases. The family itself, through the people named in the wrongful death statute, has the legal right to file the case. In a survival action, the deceased person’s estate is filing the claim. Usually, it will be the personal representative who brings the lawsuit to court.

Nonetheless, the survival action and the wrongful death case are usually filed together. Both cases rely on the same operative set of facts. To force a family and a court to have two separate hearings will be a waste of resources and generally inefficient.

Determining Legal Liability for Wrongful Death and Survival Actions

The court will need to determine whether there is a responsible party that will need to pay the damages. Both a wrongful death and a survival action rely on the same general legal standard of proof. In both cases, you will need to show that the defendant’s negligence or other wrongful action caused the injury.

If you are trying to prove negligence, you must show the following four elements:

• Your loved one was owed a duty of care.
• The responsible party breached the duty of care by acting unreasonably under the circumstances.
• Your loved one suffered an injury.
• Your loved one would not have suffered an injury had it not been for the other party’s actions.

Given the magnitude of what was lost, damages in the combination of a wrongful death case and survival action can be substantial. You should always hire an experienced attorney who can help your family understand the value of the case and fight for all possible financial compensation.

Call a Wilmington Wrongful Death Lawyer Today

Contact the determined lawyers at Horton & Mendez Injury Attorneys today to understand the difference between wrongful death and survival action and learn more about your legal rights. You can reach out to us online or call us today at (910) 668-8067 to schedule your free initial consultation.

Wrongful Death Case FAQs