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The Difference Between Wrongful Death and Survival Claims

Wrongful death and survival claims both deal with the aftereffects of someone’s death. However, there are important distinctions between the two. The main difference is that wrongful death claims are in place to compensate the family members of the deceased for their injuries (mental anguish, loss of companionship, etc.) while the survival claims are intended to recover damages for injuries suffered by the deceased before death.

Not only are the reasons for the two claims different, but there are also some differences in the filing and recovery process. This article outlines the distinctions between the two, from who is able to file, to how to determine which claims you or your family will qualify for, how the claims are handled, and the differences between how damages can be recovered.

The first important difference between wrongful death and survival claims are the elements that have to be in place for a cause of action. Once you know if you have these certain elements in place, it will be easier to determine which type of case you can file for:

Elements of a Wrongful Death Claim

There are five elements for a wrongful death claim. The first element is that the person filing the claim must be a child, spouse, or parent of the person that was killed. This means that he or she must be a “statutory beneficiary” and the requirements for the statutory beneficiary vary by state. In Texas, a sibling of the victim is not considered a statutory beneficiary, but in Arkansas, a sibling would qualify. The second and third elements have to do with the defendant. The defendant must be either a person or corporation, and it must be shown that their wrongful act was the cause of the victim’s death. The fourth and fifth claims deal with the event of the victim’s death. The fourth element is fulfilled if the victim would have been able to file an injury claim if he or she had lived, and the fifth is that the family member (plaintiff) suffered actual injury from the victim’s death. These injuries are not just physical injuries, but can also be for non-physical injuries like the plaintiff’s mental anguish. To find out about the Texas Wrongful Death Act in more detail, read this article.

Elements of a Survival Claim

Unlike the wrongful death claim that gives justice to the victim’s family, the survival claim is purely for the victim, and is the personal injury claim that survives the person after death. The compensation goes directly to the victim’s estate, so whoever is the representative or heir of that estate would handle the claim accordingly. Just as the representative of the estate deals with the deceased’s debts owed and due, he or she would also handle the injury claim that follows the victim after death. There are four elements that must be in place for a survival claim. The first one is the one we’ve already discussed, that the plaintiff must be the representative of the victim’s estate. The second and third elements have to do with the deceased. If the deceased had a personal injury cause of action to his or her health, reputation, or person before he or she died, then the second element has been met. In addition, if the deceased would have been able to bring about a cause of action for this injury if he or she had lived, then the third element is satisfied. Finally, the fourth element is to show that the defendant’s wrongful act caused the injury that the victim incurred before death. You can visit our page on the Texas Survival Statute to find out more information.

Examples of Wrongful-death and Survival Claims

  1. Survival Claim– Mike is sweeping the stairs to his apartment when the one he is standing on gives in, and he breaks his ankle in the fall. Mike has to go to the hospital to get x-rays, pain medication, a cast, etc. On the way home from the hospital, Mike gets in a bad car accident and is killed. Mike’s death had nothing to do with his injury, but since his family will still receive the hospital bills, his estate’s representative is able to sue on his behalf in order to take care of his debts.
  2. Wrongful Death Claim– Rachel slows down for a road block on the highway, and is hit by an 18-wheeler that was following behind her. Rachel is instantly killed on impact. After the accident, Rachel’s children find out that the 18-wheeler’s brakes failed because it had not been inspected as it should have been. Because the trucking company was negligent, Rachel’s children are able to file a claim against them for wrongful death. This claim covers her family’s mental anguish, lost of companionship, etc. Another reason they are able to file is because if Rachel had survived the accident, she would have had a personal injury claim against the company. Because she was killed instantly, there is no survival claim.

Is it possible to have both a Wrongful Death and Survival Claim?

There are some cases when someone’s death meets the elements of both a wrongful-death and survival claim. Here is an example of a case where both of these claims can be filed:

  • An employee tells a worker, Sam, to paint some windows on the third floor of an apartment building. Sam is not given any personal fall protection and slips on a post, falling from the third floor. Sam hits his head on one of the scaffold’s bars on the way down, and sustains multiple broken bones and internal injuries, in addition to the head injury. He is rushed to the hospital where he is in intensive care for three days, but he is unable to recover from his head trauma, and passes away. Here, there is both a survival claim and a wrongful death claim. Because the scaffold is over ten feet, the employer was required by law to enforce that Sam wear a personal harness as personal fall protection. The employer did not have workers’ comp; therefore, if Sam would have survived his injuries, he would have been able to file a claim against his employer for being negligent. Sam would have needed to file a claim to pay for his hospital bills, recovery, lost wages, etc. In this case, Sam’s family also has a wrongful death claim. They would be filing a claim for their personal injuries that occurred from Sam’s death as a result of the negligence of Sam’s employer.

    Recovery Differences Between a Wrongful Death and Survival Claim

    As mentioned earlier, in a wrongful death case the action is taken by a surviving spouse, parent, or child, and in a survival claim, the action is taken by the heir or personal representative of the estate. Recoveries for a survival claim may include damages suffered by the deceased before death, funeral expenses if the injury was the cause of death, and court costs. Recoveries for a wrongful death claim may include damages suffered by the claimants (family members) and court costs.

    What else is there to know about filing a claim?

    Both wrongful death and survival claims have a two year statute of limitations. A claim can be filed for up to two years after the injury or death, but in some cases it would be important to take immediate action, if more facts are needed to understanding the case. Often it will be unclear who is at fault until more investigating is done. It is important to have attorneys that are experts in personal injury to help with wrongful death and survival claims. If you have more questions about these claims, or would like to speak to one of our lawyers, you can call our toll-free number at (855)326-0000.

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