What is the Difference Between a Survival Action and a Wrongful Death Action?
Mar 14, 2018 - Wrongful Death
In Pennsylvania, when a person has died due to the negligent, reckless, or intentional actions of another, their surviving family members may have the right to recover damages pursuant to a survival action. Though many people are familiar with wrongful death actions (recovering damages that arise from the loss of a loved one), there tends to be quite a bit of confusion regarding survival actions and what makes them unique.
How Survival Actions Differ From Wrongful Death Actions
Survival actions are lawsuits brought by qualified family members of the deceased to recover damages that would have been owed to the deceased had they survived. Survival actions are governed by section 8302 of the Pennsylvania Consolidated Statutes, which states that all causes of action (or proceedings) will continue after the death of the plaintiff.
What does this mean, exactly?
Suppose that your father has passed away due to fatal injuries that they incurred in a motor vehicle accident. The defendant was distracted at the time of the accident, and their erratic driving caused the collision and your father’s subsequently fatal injuries. Your father did not die immediately, however. In the aftermath of the accident, there were weeks of treatment, which ultimately failed.
Now, your father would have had the right to sue and recover damages for the losses he sustained following the accident, and before they died. He would have been entitled to sue for pain and suffering, medical expenses, lost wages, emotional distress, and more. Section 8302 ensures that your father’s right to recovery continues in the form of a survival action. You — a surviving family member — can therefore recover damages for the losses he directly sustained following the accident.
Simply put, a survival action accounts for the losses directly sustained by the deceased individual. The right of recovery is granted to the surviving family members of the deceased
so that they can secure damages that would have otherwise been available to the deceased individual.
By contrast, wrongful death actions allow surviving family members to recover damages for the losses they have sustained as a result of the death of their loved one.
Let’s continue with the above example. Suppose that you were very close with your father and he provided both emotional and financial support. The death of your father therefore caused you to lose access to the companionship and guidance of your father, as well as consistent financial support. A wrongful death action would entitle you to recover damages for these various losses.
The Right to Recovery
In Pennsylvania, it’s worth noting that only the personal representative, administrator, or executor of the decedent’s estate may bring a survival action. This is quite unlike a wrongful death action, which may be brought by the beneficiaries of the deceased. In a survival action, all compensation will be distributed to the estate of the deceased person, and will then be dispensed to whoever is in the Will (or according to the default rules of intestate succession in Pennsylvania).
Whereas in a wrongful death action only the surviving spouse, children, and/or parents of the deceased may recover, in a survival action, anyone who is a beneficiary (according to the Will of the deceased) may recover. This means, for example, that a beloved nephew, or friend, or charity, may be entitled to some portion of damages recover in a survival action.
Contact a Bethlehem Wrongful Death Attorney for Further Guidance
Has your loved one died due to the negligent, reckless, or intentional acts of another person (or entity)? If so, then you may not only have the right to recover damages pursuant to a wrongful death action, but also to recover damages pursuant to a survival action. Survival actions are rather challenging, however, so you’ll want to get in touch with a skilled team of attorneys who have a history of success in litigating such claims before Pennsylvania courts.
Here at Drake Hileman & Davis, PC, our attorneys have represented numerous clients in survival and wrongful death actions for over three decades, assisting them throughout the litigation process. We take pride in maintaining an open and transparent relationship with our clients — we keep clients apprised of all relevant developments in the case, and inform them on the issues so as to ensure that our strategic objectives are aligned. We understand that preparedness is critical to success, and as such, we are well-positioned to negotiate aggressively on your behalf. If negotiations falter, we can effectively pursue trial litigation in order to secure damages.
Call (888) 777-7098 today to schedule a free consultation with an experienced Bethlehem wrongful death attorney here at Drake, Hileman & Davis, PC.