- A “wrongful death” lawsuit, to compensate the survivors for their losses, and/or
- A “survival” cause of action, to compensate the estate for losses suffered by the “decedent” (deceased person) prior to death.
Survival actions are authorized by California Code of Civil Procedure 377.30. They get their name because under this law the right to sue for damages “survives” the decedent's death.1
The difference between a wrongful death suit and a survival cause of action
Unlike a “wrongful death” lawsuit in California, a “survival” action does not compensate the deceased's family members for their losses.
Rather, a survival action lets the deceased's estate sue for losses sustained by the decedent as the result of the wrongful act before he or she died.
What damages can be recovered in a survival suit?
Damages recoverable in a survival action often include (but are not limited to):
These are damages sustained after the wrongful act but before the resulting death. This means that in cases in which the wrongful act caused instantaneous death, a survival action may not be possible.
But as long as the victim survived long enough to incur some sort of economic damage – no matter how minor – a survival cause of action is appropriate.
Examples of decedents whose estates can bring survival actions:
- A senior citizen who died as the result of nursing home neglect or abuse,
- Someone who died in the ambulance on the way to the hospital after being shot,
- A drowning victim who died after paramedics performed several minutes of CPR,
- Someone who died after her car was struck by a drunk driver,
- A victim of an explosive device whose clothing and backpack were damaged in the blast.
Can the estate recover for the deceased's pain and suffering?
Unfortunately, in this type of claim, the estate may not recover for the deceased's pain and suffering.
But punitive damages are recoverable in a survival cause of action in California. And since they are not recoverable in a wrongful death lawsuit, this makes a survival action a powerful tool for recovering monetary damages from the wrongdoer.
Are separate lawsuits required for wrongful death and a survivor action?
Wrongful death and survival actions can be brought separately or combined into a single lawsuit.2
Regardless of whether they are alleged in one lawsuit, it is important to remember that they are separate causes of action. They have different requirements, including who can bring each cause of action and the time limit (statute of limitations) in which suit must be brought.
These differences 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 survival causes of action, our California personal injury lawyers discuss, below:
- 1. What is a “survival” cause of action in California?
- 2. Who can bring a survival cause of action?
- 3. What damages can be recovered in a survivor action?
- 4. Can the estate recover damages for pain and suffering?
- 5. Are punitive damages recoverable in a California survival cause of action?
- 6. How is the amount of punitive damages determined?
- 7. What is the statute of limitations for a survivor action in California?
Normally, a plaintiff's right to sue expires on the death of the plaintiff. An exception is where a statute allows a cause of action to “survive” the plaintiff's death.
One such law is Code of Civil Procedure 377.30, California's “survival” cause of action statute.
CCP 377.30 allows the personal representative of the estate of a decedent (deceased person) to sue for any damages the decedent could have sued for had he or she not died.
It is important to keep in mind that wrongful death and survival actions are intended to compensate for losses by different parties.
The latter compensates the estate for losses sustained by the decedent prior to his or her death.
A wrongful death lawsuit, on the other hand, compensates family members for their own losses sustained as a result of the death.3
Thus a survival cause of action under Code of Civil Procedure 377.30 must be brought by the decedent's personal representative. If the estate does not have a personal representative, the action can be brought by the decedent's successor in interest.
In many cases, the estate's personal representative will be a member of the decedent's family. But it does not have to be.
Some decedents' estates are represented by a lawyer, an accountant, a close personal friend or someone else named in the decedent's trust or will.
The damages recoverable in a survivor action are limited to actual economic (monetary) losses the victim sustained after the wrongful act but before his or her death.
Because there must have been time for the victim to sustain losses before death, a survival action may not be sustainable if the deceased was killed instantaneously. (Note, however, that instantaneous death does not affect the family members' right to bring a wrongful death lawsuit).
California courts are fairly generous in finding economic damages sufficient for the estate to maintain a survival cause of action.
As a result, if there was even a slight delay before death occurred, there will usually be some sort of economic injury – even if it is only damage to clothing or other minor personal property.
More typical economic damages in a survival cause of action include (but are not limited to);
- Medical bills the decedent incurred because of the wrongful act,
- Damage to the decedent's property during the wrongful act, and/or
- Wages the decedent lost between the wrongful act and the date of death.4
No. Neither a wrongful death claim nor a survival cause of action allows recovery for grief or pain and suffering.5
Yes. Punitive damages can be recovered in a survival cause of action.
This is the most significant difference between a survivor action and a wrongful death lawsuit. California's wrongful death statute does not allow for the recovery of punitive damages.
However, in order for the court to grant punitive damages, the victim must have sustained at least some economic (monetary) damages before death, however minimal.
As long as the victim survived even a short period of time, there will usually be some economic damages that can be asserted in a survivor action. This helps prevent people who engage in malicious wrongs – such as murder – from getting away with it "on the cheap".6
Example: The O.J. Simpson civil lawsuit
Consider, for instance, the case of O.J. Simpson. Simpson was accused of murdering his wife, Nicole Brown, and her friend, Ronald Goldman.
A jury found Simpson “not guilty” at his criminal trial. But the families of Brown and Goldman sued Simpson in a civil lawsuit for both wrongful death and for a survival cause of action.
In the survivor cause of action, the court found only nominal (minimal) economic damage since the victims died almost immediately.
But the court still awarded each victim's estate $12.5 million in punitive damages.7
This was possible because, in a survival action, the amount of punitive damages is based in part on the actual harm suffered by the decedent. A wrongful death action, by contrast, focuses on the limited economic damages recoverable by the estate.8
Punitive damages serve to punish particularly blameworthy wrongdoers and to serve as an example to deter others from behaving in a similar way.9
Defendants are considered particularly blameworthy if they have engaged in "malice, fraud or oppression." This is generally defined as behavior that is carried out with a willful and conscious disregard of the rights or safety of others.10
The amount of punitive damages is 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.11
The actual harm suffered by the victim is not the same as the economic damages the victim suffered before his or her death. In fact, it may be significantly greater, as in the O.J. Simpson case.
This example illustrates why it is so important to bring a survivor action in addition to a wrongful death action whenever possible.
Survivor causes of action "accrue" (begin running) at the time of the wrongful act. This is slightly different than a wrongful death action, which does not arise until the decedent's death.
A survivor action can be brought at any time before the later of the following to occur:
- Two years from date of the wrongful act, or
- Six months from the date of the decedent's death.
In some cases -- such as when the wrongful act results in near-immediate death -- the time limit for bringing a survivor action and a wrongful death suit will be the same or almost the same.
But in others, one may be earlier than the other -- sometimes by only a matter of days, sometimes by much longer.
Example: Joe is a disabled senior citizen who lives in a nursing home in California. One of his nurses gets tired of turning Joe over to clean him so she stops doing it on a regular basis. As a result, Joe develops bed sores, which never fully heal. After a while, the bed sores get infected and cause Joe's death.
A medical expert establishes that the wrongful act (neglect) occurred in or about January 2015. Joe died approximately one-and-a-half years later, in August 2016.
Joe's estate could have brought a survival action up until February 2017 (6 months from the date of Joe's death). In this case 6 months from the death is slightly later than two years from the wrongful act that caused the death.
At the same time, Joe's loved ones have until August 2018 (two years from the date of Joe's death) to sue for wrongful death.
Because a survivor action is usually the only way to recover punitive damages for a wrongfully caused death, it is critical to file suit within the correct statute of limitations.
An experienced California wrongful death lawyer can review your case and make sure you file suit within the appropriate time period.
Need to sue for the death of a loved one? Call us for help…
If someone you love experienced a wrongful death we invite you to contact us for a free consultation.
Our caring California personal injury attorneys can help you determine all the causes of action you may have against the wrongdoer so that you get all the compensation the wrongdoer owes you.
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- Grant v. McAuliffe (1953) 41 Cal.2d 859.
- Code of Civil Proecure 377.62.
- Code of Civil Procedure 377.61.
- See e.g., County of Los Angeles v. Superior Court (1999) 21 Cal.4th 292.
- Code of Civil Procedure 377.34.
- Romo v. Ford Motor Co. (2003) 113 Cal.App.4th 738
- Rufo v. Simpson (2001) 103 Cal. Rptr. 2d 492.
- Same. See also Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910.
- Civil Code 3294.
- Neal v. Farmers, endnote 8.