When a loved one is taken due to the negligence of another, the path to justice often feels like an uphill battle. You may hear legal terms like “wrongful death” or “survival action” used to describe the civil claims available to your family. At Berry Law, we understand that these aren’t just legal terms—they represent the fight to hold negligent parties accountable.
A “survival action” refers to a legal claim that “survives” the individual. Essentially, the legal right to seek justice does not disappear when a person passes away; instead, it passes to their estate. A representative of the estate can then assert the survival action claim on behalf of the individual, ensuring their voice is heard even after they are gone.
Survival Action vs. Wrongful Death: Understanding the Difference
While a wrongful death claim and a survival action often overlap, they serve distinct purposes in your pursuit of victory.
- Wrongful Death Claim: This claim compensates surviving family members and heirs for their own losses. This includes the loss of financial support and the loss of companionship.
- Survival Action: This focuses on the claim the decedent could have brought themselves if they had survived. It addresses the injury to the individual, including medical bills, lost wages during recovery, and the physical and emotional pain and suffering they endured.
Both claims arise from the same incident, but they target different damages. A wrongful death claim looks at the hole left in the family’s future, while a survival action demands accountability for the pain the individual suffered.
The 4 Essential Legal Elements of a Survival Action
To succeed in a survival action, the estate must prove the same four pillars required in a wrongful death claim:
- Duty of Care: We must establish that the defendant owed a legal duty to your loved one. For example, a driver owes a duty to others on the road to operate their vehicle safely.
- Breach of Duty: We show the defendant acted negligently. A breach occurs when someone fails to act with the care a reasonable person would provide in a similar situation, such as running a red light.
- Causation: We prove the defendant’s breach was the direct cause of the injury. This is straightforward in many accidents but can require meticulous evidence if pre-existing conditions are involved.
- Damages: We provide evidence of the losses endured. In survival actions, this focuses on what the individual suffered prior to their death, including medical expenses and conscious pain and suffering.
Procedural Considerations: Taking the First Step
Because a survival action belongs to the estate, it must be brought by a legally appointed representative, often called an Executor or Personal Representative. This usually requires a probate proceeding to confirm authority.
The clock is ticking. Every state has a strict statute of limitations. Failing to meet these deadlines can bar your recovery entirely. It is essential to move with a sense of purpose to secure the benefits and justice your family deserves.
Berry Law’s Team Provides You With Multiple Attorney Perspectives
Fight Back with Berry Law
A survival action is more than a case; it is a battle for the dignity of a champion who can no longer fight for themselves. By proving duty, breach, causation, and damages, we fight to recover compensation for the medical expenses and pain your loved one endured.
Our attorneys at Berry Law approach wrongful death and survival actions with the same Warrior Ethos we bring to every mission. We stand shoulder to shoulder with you to ensure negligent parties are held accountable.
Ready for your next battle? Contact Berry Law today for a free consultation.
