In the past, when an injured person died, their right to bring a legal claim died with them. It was a bit of cruel irony of early personal injury law that Person A could be liable for harming Person B as long as Person A didn’t die. In other words, if Person A's wrongdoing was serious enough to kill Person B, Person A could be held to pay no "damages" or other civil penalties (criminal liability was a different matter, of course).
States now have laws that allow a mass tort or other personal injury lawsuit to exist if the injured person dies (typically called "survival actions"), and also let specific individuals sue for harm they suffer because of the death of someone very close to them (usually called "wrongful death" cases).
Both of these types of civil lawsuits can take place when the victim of a negligent or otherwise wrongful act dies before a legal recovery can take place. Despite their similarities (the right to file both arises after the death of a prospective or existing plaintiff), these legal actions differ on a fundamental level.
A wrongful death case allows eligible survivors to sue for the losses they've experienced, although not just anyone can bring a wrongful death lawsuit. These eligible survivors are often close family members, like children, a spouse, or parents.
In most states, only parents of a deceased minor child may bring a wrongful death lawsuit for the death of a minor child. When the deceased is an adult child, the surviving parents typically do not have a wrongful death claim. Learn more about who can file a wrongful death lawsuit.
Rules differ from state to state, but the types of damages that the survivors in a wrongful death lawsuit can often recover include:
In contrast, a survival action allows someone else to start or continue a lawsuit in place of the deceased plaintiff. In other words, someone else gets to serve as a substitute plaintiff. This means that the damages that the estate can potentially recover will be the same as if the plaintiff was alive and continuing with the personal injury case.
Each state will have its own set of laws that dictate how wrongful death and survival actions will work: who can file suit, damages available, and deadlines for filing the case.
So the question becomes, when a plaintiff dies, will we have a wrongful death lawsuit or a survival action? The answer to this question usually depends on what caused the plaintiff’s death.
If the plaintiff’s cause of death is unrelated to the underlying personal injury case, then there is no wrongful death claim. Instead, a survival action can take place.
For example, if someone is injured in a car accident, but dies because of the coronavirus, the personal injury lawsuit for injuries sustained in the car accident can continue. Instead of the plaintiff bringing the lawsuit, it will be a representative from the plaintiff’s estate, such as an executor, executrix, or administrator. The plaintiff’s estate may bring the survival action whether the plaintiff died during the lawsuit or before filing suit.
Even though a representative from the estate can still sue on the decedent’s behalf, they can only recover damages incurred up to the time of the plaintiff's death. Any calculation concerning a claim for lost income or pain and suffering of the deceased will only go as far as the date of the plaintiff’s passing.
Depending on the length of time between the event causing the personal injury and the time of death, these damages can vary widely. Even in situations where the victim dies soon after the accident, substantial recovery is still possible, as wrongful death damages can be significant. Keep in mind that some states will have special caps or limits on wrongful death damages that eligible survivors can recover.
In situations where the defendant’s actions not only injure the plaintiff, but eventually cause the plaintiff’s death, the defendant can be liable in both a survival action and a wrongful death action.
The estate of the deceased plaintiff will bring the survival action and can recover whatever the plaintiff would be able to recover had the plaintiff lived. Eligible survivors can also bring a wrongful death cause of action.
There’s potential for two sets of plaintiffs, with one bringing the survival action and one bringing the wrongful death lawsuit. However, a survivor in a wrongful death case can also be the representative of the decedent’s estate, such as a parent, child, or spouse. In practice, this means that it’s common for the same person to bring both a wrongful death case and a survival action.