16.6 Wrongful Death & Survival Actions

Wrongful Death & Survival Actions

Content map item 380 is the last entry under Negligence and it answers a question the common law got badly wrong: what happens to a tort claim when someone dies. At common law the answer was brutal and simple — actio personalis moritur cum persona, a personal action dies with the person. A tortfeasor who injured a victim faced liability; a tortfeasor who killed the same victim faced none. Every American jurisdiction has abolished that result by statute, and the FYLSX tests whether you can keep the two different statutory claims apart.

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1. Two Separate Claims, Two Separate Plaintiffs

The two claims routinely proceed together out of one accident. A driver negligently strikes a pedestrian who lingers three weeks in intensive care and then dies. The survival action recovers the pedestrian's medical expenses, lost wages for those three weeks, and conscious pain and suffering endured before death. The wrongful death action recovers what the spouse and children lost by the death itself.

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2. The Survival Action

A survival statute is procedural: it does not create a new cause of action, it keeps the decedent's existing one alive. Whatever claim the decedent could have brought the moment before death — negligence, battery, products liability — passes to the estate.

Recoverable in a survival action:

• Medical and funeral expenses incurred before death
• Lost earnings from injury to death
• Conscious pain and suffering before death
• Property damage

The pain-and-suffering element carries the most exam weight, because it requires consciousness. A victim killed instantly recovers nothing for pain and suffering, so the survival action in an instantaneous-death case shrinks to property damage and funeral costs, and the real recovery sits in the wrongful death claim. Most jurisdictions also bar punitive damages in survival actions, though a substantial number permit them.

Note the exception: purely personal torts — defamation, invasion of privacy, and in many states malicious prosecution — generally do not survive the plaintiff's death even under a survival statute. Where a defamation defendant dies, the claim likewise usually abates.

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3. The Wrongful Death Action

A wrongful death statute is substantive: it creates a brand new claim in favour of designated survivors for their own losses. The measure is what the beneficiaries lost, not what the decedent suffered.

Recoverable by the beneficiaries:

• Pecuniary loss — loss of the decedent's financial support, and the value of lost services such as childcare or household work
• Loss of society and companionship in most modern statutes
• Loss of consortium for a surviving spouse, and in many states loss of parental guidance for children

Generally not recoverable:

• The beneficiaries' own grief and sorrow in the majority of states
• The decedent's own pain and suffering — that belongs to the survival action
• The value of the decedent's lost life to the decedent

Standing is fixed by statute and is usually tiered: a surviving spouse and children first, then parents, then more distant heirs. A person outside the statutory class recovers nothing however close the relationship, which is the standard trap for unmarried partners in older statutes.

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4. The Defenses Travel With the Claim

This is the single most heavily tested principle in this area, and it follows from the derivative nature of both claims.

Was the decedent's own claim defeated or reduced?
        │
        ├── Decedent was contributorily/comparatively negligent
        │        → the SAME reduction or bar applies to BOTH actions
        │
        ├── Decedent had already settled and released the tortfeasor
        │        → wrongful death claim is generally BARRED too
        │
        ├── Decedent's claim was time-barred before death
        │        → both actions fail
        │
        └── Decedent had assumed the risk
                 → defense applies to both

Because the wrongful death claim is derivative of the decedent's claim, any defense good against the decedent is good against the beneficiaries. If the decedent was 40 percent comparatively at fault, the beneficiaries' award is reduced by 40 percent. If the decedent had already litigated and lost, or settled and released, the beneficiaries generally take nothing.

The mirror-image trap runs the other way: the beneficiary's own negligence bars or reduces that beneficiary's share only, not the shares of innocent beneficiaries. A parent whose own negligence contributed to a child's death may be barred while the other parent recovers in full.

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5. Loss of Consortium as an Independent Claim

Distinguish loss of consortium brought while the victim is alive from wrongful death. Where a tort seriously injures but does not kill, the spouse has an independent claim for loss of services, society, and sexual relations, and most modern states extend an analogous claim to children for loss of parental consortium. That claim is also derivative: it fails if the injured spouse's own claim fails, and it is reduced by the injured spouse's comparative fault.

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6. Exam Checklist

When a FYLSX fact pattern ends in a death, run this sequence:

1. Did the victim survive for any period? If yes, a survival action captures the pre-death losses, including conscious pain and suffering.
2. Did the tort cause the death? Only then does a wrongful death claim exist.
3. Who is suing? The estate's representative sues in survival; statutory beneficiaries sue in wrongful death. An answer choice giving the estate the beneficiaries' damages is wrong.
4. What defenses did the tortfeasor have against the decedent? Apply every one of them to both claims.
5. Is the claimed item of damages assigned to the right claim? Grief is usually not recoverable at all, the decedent's pain and suffering belongs only to the survival action, and lost support belongs only to the wrongful death action.