- A “wrongful death” lawsuit, to compensate the survivors for their losses, and/or
- A “survival” cause of action, to compensate the decedent’s estate for losses sustained by the victim prior to death.
It is not necessary to secure a murder or manslaughter conviction in order for the families to sue the perpetrator. In fact, criminal charges do not even need to be filed to win a civil case.
Wrongful death and survival actions do not need to be won by the “beyond a reasonable doubt” standard of proof in criminal cases. In a civil lawsuit, nine of the 12 jurors simply need to conclude that it was more likely than not (“by a preponderance of the evidence”) that the defendant was responsible for the victim’s death. This is a much lower burden of proof than in criminal cases.
The difference between a wrongful death suit and a survival action
Wrongful death lawsuits and survival actions can be brought
- in a single lawsuit or
- in separate civil actions.
Regardless, they cover different types of losses.
- Wrongful death actions compensate the families for their direct monetary losses.
- Survival actions cover losses the victim could have sued for had he or she lived.
They are known as “survival actions” because the right to sue “survives” the victim’s death.1
It is important for victims’ families to bring both types of suits wherever possible. It is especially important to allege a survival action since it is the only one in which punitive damages may be recovered.
The key differences between the two types of actions are illustrated in the following chart and discussed, in detail, below:
|Wrongful Death – CCP 377.60
|“Survival” Action – CCP 377.30
|Brought by close family members
|Brought by personal representative of estate
|Compensates family for their losses
|Compensates the estate for the deceased’s losses
|Economic losses recoverable
|Economic losses recoverable
|No pain and suffering recoverable
|No pain and suffering recoverable
|No punitive damages recoverable
|Punitive damages are recoverable
|Suit must be brought within 2 years of death
|Suit must be brought by the later of: 2 years from wrongful act or 6 months after death
To help you better understand how families of murder victims can sue for damages, our California personal injury lawyers discuss:
- 1. What is a wrongful death action?
- 2. What is a “survival” cause of action?
- 3. How much is a wrongful death case worth?
- 4. What damages can be recovered in a “survival action”?
- 5. Can a murder victim’s family get damages for pain and suffering and/or punitive damages?
- 6. Does the murderer need to have been convicted?
- 7. How are punitive damages determined in a survival action?
- 8. Who can sue on behalf of a murder victim?
- 9. Can anyone besides the perpetrator be sued for murder?
- 10. What is the statute of limitations to sue for a murder?
1. What is a wrongful death action?
California’s “wrongful death” statute is Code of Civil Procedure 377.60. It allows close family members of someone who died as the result of a wrongful act to recover for losses such as:
- Funeral and burial expenses;
- Loss of consortium (such as loss of the victim’s love, companionship, comfort care, moral support); and/or
- In the case of a spouse or registered domestic partner, the loss of sexual relations.
Unfortunately, wrongful death actions do not include damages for:
- The grief or sorrow experienced by the family members, or
- Any losses that can be obtained in a “survival” cause of action.
Losses for grief and sorrow are not recoverable at all by murder victims’ families.
But punitive damages may be recovered in a survival action. These are damages that are not related to actual monetary damages suffered by the victim or family.
Rather, punitive damages exist solely to punish the wrongdoer and serve as a negative example to others.2
2. What is a “survival” cause of action?
Unlike a cause of action for wrongful death, a “survival” action — also known as a “survivor” action — does not compensate the victim’s surviving family members for their losses.3
Rather, it allows the representative of the victim’s estate to sue for losses the victim could have sued for had he or she lived.
The reason a survival action exists is that under normal circumstances, a plaintiff’s right to sue a defendant is lost when the plaintiff dies. But California Code of Civil Procedure 377.30 allows the personal representative of the victim’s estate to step into the victim’s shoes and sue.
The requirement that the victim survives at least briefly
Oddly, in order to recover for survivor damages, the victim must have survived, at least briefly, after the wrongful act.
This is because California law does not allow the estate to recover for the victim’s pain and suffering. As a result, the victim must have experienced actual monetary losses after the wrongful act but prior to death.
Fortunately, these losses do not need to be large. They can be something as little as damage to clothing or minor personal property. And as we will see, these small damages can lead to a big recovery.
3. How much is a wrongful death case worth?
“Wrongful death” lawsuits compensate families of murder victims for out-of-pocket expenses as well as the loss of the victim’s companionship.
Damages for wrongful death can include (but are not limited to):
- Funeral expenses and burial expenses,
- Amounts the deceased would have earned as income, and
- Compensation for the loss of the deceased’s companionship and support.
4. What damages can be recovered in a “survival action”?
Damages that can be recovered in a survivor action start with the economic (monetary) losses the victim could have sued for after the wrongful act. They typically include costs such as:
- Medical bills the victim incurred because of the wrongful act,
- Damage to the victim’s property that occurred as the result of the wrongful act, and/or
- Wages the victim lost between the wrongful act and the date of death.4
As noted, there must have been time for the victim to sustain losses before death.
If the deceased was killed instantaneously a survival action usually is not possible (though it does not affect the family members’ right to bring a wrongful death lawsuit).
Examples of survival action losses:
- Emergency room bills for a child who died as the result of long-term abuse,
- Ambulance bill for someone who died on the way to the hospital after being stabbed,
- Medical expenses of a senior killed by nursing home abuse,
- The wrecked car of a teenager killed by a drunk driver (vehicular manslaughter),
- The damaged clothing and purse of a mass shooting victim.
It may seem as if some of these damages are not worth suing for.
But as long as there is actual economic damage, the estate’s representative can seek punitive damages (discussed below).
5. Can a murder victim’s family get damages for pain and suffering and/or punitive damages?
Unfortunately, neither a wrongful death suit nor a survival action permits recovery of damages for the grief or pain and suffering of either the victim or his/her family.
But punitive damages may be recovered in a survival cause of action in California. And they can often far exceed the actual monetary damages recovered.
This makes it important for a victim’s estate to sue under a survivor action wherever possible.
6. Does the murderer need to have been convicted?
No. For instance, football player O.J. Simpson was found “not guilty” of murdering his wife, Nicole Brown, and her friend, Ronald Goldman in the criminal court case.
After the criminal trial ended, the Brown and Goldman families sued Simpson for wrongful death and a survival cause of action in civil court.
A jury found Simpson liable to both families and awarded significant punitive damages despite O.J. Simpson having been acquitted in the murder case.
7. How are punitive damages determined in a survival action?
In the survivor cause of action, there may be minimal economic damages. This is especially true when a victim’s death occurs promptly after the wrongful act.
But unlike direct economic damages, punitive damages in a survival action are based on three main factors:
- The reprehensibility of the defendant’s conduct,
- The actual harm suffered by the victim, and
- The wealth of the defendant.5
The result is that punitive damages can often be very high in relation to the victim’s actual monetary losses.
For instance, in the O.J. Simpson case, the court found only nominal (minimal) economic damages since the victims died at the murder scene.
But each victim’s estate was awarded $12.5 million in punitive damages.6
This illustrates why bringing a survival cause of action is often even more important than suing for wrongful death.
8. Who can sue on behalf of a murder victim?
Under California Code of Civil Procedure 377.60 the following family members or heirs can bring a wrongful death lawsuit on behalf of a murder victim:
- Surviving spouses,
- Domestic partners,7
- Grandchildren (if the deceased person’s children are also deceased),
- Other minor children (such as stepchildren) who were dependent on the deceased for at least 50% of their financial support, and
- Anyone else who would be entitled to the deceased’s property under California’s laws on intestate succession.
A survival action, on the other hand, must be brought by the estate’s personal representative.
Often the personal representative will be a member of the victim’s family. But some victims’ estates are represented by a business representative, such as a lawyer, accountant or banker, or a personal friend.
The actions can be brought in separate lawsuits but for convenience, are usually combined into a single case.
9. Can anyone besides the perpetrator be sued for murder?
Sometimes, yes. Obviously, the murderer is a potential defendant in a civil suit.
But legally, there may be other parties responsible.
For instance, perhaps a ride-sharing company failed to conduct a required background check of one of its drivers.
Or perhaps a building owner may not have provided adequate lighting or security and can be held liable under California’s premises liability laws.
Your California injury lawyer will review your case and help you determine what parties may be legally liable for damages.
10. What is the statute of limitations to sue for a murder?
The California statute of limitations for wrongful death cases and survival actions “accrue” (begin running) on different dates.
The statute of limitations for a survival action in California begins at the time of the wrongful act. The estate can then sue until the later of:
- Two years from the wrongful act, or
- Six months after the victim’s death.8
A wrongful death action, on the other hand, accrues when the victim dies. The family has two years from that date on which to sue.9
Example: Joanie is struck by a drunk driver on New Year’s Eve 2015. She ends up in a coma and finally expires on October 30, 2017.
Joanie’s family decides to sue the driver who hit her. Their wrongful death action accrues on the time of death – October 30, 2017. They can file the wrongful death lawsuit at any time within two years afterward.
The statute of limitations for the survival action began to run on the date of the car accident, however – that is, on December 31, 2015. But the representative of the estate can still sue for up to six months after Joanie’s death – that is, until April 29, 2018.
Effectively this means that the family must track the earlier date in order to sue under both causes of action.
An experienced California personal injury attorney can help you figure out the dates by which you must file a lawsuit.
- Grant v. McAuliffe (1953) 41 Cal.2d 859.
- California Civil Code § 3294.
- California Code of Civil Procedure 377.30.
- See e.g., County of Los Angeles v. Superior Court (1999) 21 Cal.4th 292.
- California Code of Civil Procedure 377.34.
- Rufo v. Simpson (2001) 103 Cal.Rptr.2d 492.
- A “domestic partner” is a person who, at the time of the decedent’s death, was a registered domestic partner in accordance with California Family Code 297(b).
- California Code of Civil Procedure 336.1.
- California Code of Civil Procedure 335.1.