What is a Survival Action?
A survival action is filed after the victim of an accident dies, but the victim must not have died immediately following the accident. Only a short period of survival is required by law.
In a survival action, a personal representative of the victim’s estate takes on the legal rights of the deceased. If there is no personal representative, then the deceased’s successor-in-interest may file the lawsuit. The personal representative or successor-in-interest may be eligible to recover the damages that the victim would have been able to claim had he or she survived. Notably, survival actions may also serve to continue a personal injury lawsuit previously filed by the deceased while he or she was still alive.
What is the difference between a survival action and a wrongful death claim?
In a survival action, the personal representative is attempting to recover on behalf of the deceased individual. On the other hand, in a wrongful death claim, the personal representative(s) of the victim is attempting to recover for the damages that they themselves – not the victim – incurred.
Hire a trusted attorney to guide you
Losing a loved one, especially when it is unexpected, is often extremely traumatic for the surviving friends and family members. Being able to think clearly, identify your legal rights, and know which steps to take in order to assert those rights is a tall task for any grieving person. That is one reason why our attorneys at Ellis Injury Law recommend that people contact a qualified Los Angeles wrongful death lawyer to discuss all potential survival actions.
Who can file a survival action?
According to California law, a survival action “may be commenced by the decedent’s personal representative, or, if none, by the decedent’s successor in interest.” Any number of tragic accidents can give rise to a survival action. Here are some common examples that wrongful death lawyers have handled:
- An elder who passed away as a result of nursing home abuse or neglect
- A gunshot victim that dies either in the ambulance on the way to the hospital or in the hospital
- A loved one who drowns and then dies after the paramedics attempt for a period of time to save his or her life
- A bus accident victim that later dies in the hospital
- A loved one happened to be carrying something extremely valuable at the time of the initial injury, and that item was destroyed in the accident
What are the damages that can be sought in survival actions?
California law enables survival action claimants to recover “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.” It is important to note that these damages occurred after the accident but before the resulting death. Having a wrongful death attorney on your side that has a track record of success is crucial when it comes to recovering these damages. Here are some examples of the types of damages that claimants can and cannot recover in survival actions:
- Doctor visits or hospital bills
- Lost wages and loss of earning capacity
- Damage to personal property
- Damages for pain, suffering, and/or disfigurement do not apply in survival action claims
- Punitive damages may apply in the event of egregious behavior and are aimed at punishing the wrongdoer and deterring both the wrongdoer and the public from doing something similar in the future
You only get one chance to do this right
With your deceased loved one no longer around to help provide evidence for your case, survival actions can quickly become highly complex lawsuits. Attempting to go it alone or hire an inexperienced attorney are both losing recipes when it comes to survival actions. On the other hand, the right Los Angeles personal injury lawyer can make all the difference. At Ellis Injury Law, we have been standing up for the rights of Southern Californians for a quarter of a century, and we have recovered over $350 million for our clients.
If you are interested in learning more about survival actions, call us today for your free consultation. The phone lines at Ellis Injury Law are always on, and you can rest assured that nothing will come out of your pocket unless you prevail.