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Wrongful Death and Survival Statutes

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Wrongful Death

At common law, the cause of action for personal injury was extinguished by the death of either the plaintiff or the defendant. In the United States, state by state, changes were made by statute to common law rules. Currently, there is some form of recovery for the death of another due to tortious conduct. In most states, there are two statutes that change common law: the survival statute and the wrongful death statute.

Survival Statute

The survival statute is a cause of action for personal injury survives the death of the plaintiff, the defendant or both. The cause of action decedent would have survived the death of either party. If it is a defendant who has died, the claim may be brought against the defendant’s estate. If it is a plaintiff who has died, usually the claim can be brought by the executor or administrator of the estate on behalf of the estate. Thus, the cause of the death of the plaintiff may be independent of the defendant’s wrongdoing.

California Survival Statute

When someone in California is killed as the result of negligence, recklessness or an intentional wrongful act, two types of lawsuits may be brought against the wrongdoer:

1. A “wrongful death” lawsuit, to compensate the survivors for their losses, and/or

2. A “survival” cause of action, to compensate the estate for losses suffered by the “decedent” (deceased person) prior to death.

California Code of Civil Procedure 377.30 authorizes survival actions. They get their name because under this law the right to sue for damages “survives” the decedent’s death.

What Damages Can Be Recovered In A Survival Lawsuit?

Types of damages recoverable in a survival action often include (but are not limited to):

● Medical bills,

● Lost wages, and /or

● Personal property damage.

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 action claim 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 in a car accident after her car was struck by a drunk driver,

● A victim of an explosive device whose clothing and backpack were damaged in the blast.

Wrongful Death Statute

Under the wrongful death statute, a new cause of action is created by the death of an individual due to the tortious conduct of another. It is a new, independent cause of action created on behalf of certain beneficiaries designated by the statute. It is to be brought by one of the beneficiaries on behalf of all of them or by the personal representative of the decedent on behalf of the statutory beneficiaries. Sometimes the statute provides for categories or classes of beneficiaries, giving priority to one class of beneficiaries (spouse and minor children) over others (adult children). It is only if there is no one in a class (no spouse or minor children) that a claim arises for someone in the class with the next priority (adult children).

A wrongful death action may be brought against a person also facing criminal charges for the same event, and even if the person is not found guilty of a criminal charge, the person may be found liable for the wrongful death action because it has a lower burden of proof. The action is governed by state statutes which limit the damages and who can benefit from such suits. The statutes allow children and spouses to receive damages from wrongful death suits, but some states extend this to parents, siblings, and other dependents. Damages for wrongful deaths compensate for the lost financial support and suffering due to the death, and juries award damages based on a variety of factors including the person’s income beforehand, expected future income, and the level of family members dependence. Sometimes juries may award damages for funeral expenses, pain, and emotional harm caused to the person injured when they suffer before dying. Also, some states allow punitive damages to be awarded where the person causing the death does so out of intent or recklessness.

California’s Wrongful Death Law

California’s wrongful death law allows surviving family members or the estate to sue for damages when a person dies as the result of someone else’s wrongful act – whether the act was negligent, reckless, or intentional. The law is outlined in the statute Code of Civil Procedure 377.60.

A settlement or verdict may pay out damages for:

(1)Burial and funeral expenses for the decedent,

(2)Amounts the deceased would have earned as income,

(3)pain and suffering and disfigurement of the decedent,

(4)Compensation for the loss of the deceased’s companionship and support.

These cases are similar to a cause of action for “loss of consortium” under California law. Loss of consortium applies when a spouse or registered domestic partner is deprived of the companionship and intimacy of a living partner due to someone’s wrongful act.

A wrongful death suit is frequently coupled with a California “survival” cause of action under CCP 377.30. Survival causes of actions are brought on behalf of the victim’s estate to compensate for losses suffered by the victim (as opposed to the family) from the wrongful act. As our Supreme Court has explained, “Because it is a creature of statute, the cause of action for wrongful death exists only so far and in favor of such person as the legislative power may declare.” (Justus v. Atchison (1977) 19 Cal.3d 564, 575). C.C.P. § 377.60, subd. (a)

The first group that has standing are spouses, domestic partners, children, and issue of deceased children. (The term “spouse” refers to “persons who are lawfully married to each other.” (Fam. Code, § 11.) “Domestic partner” means a person who, at the time of the decedent’s death, was the domestic partner of the decedent in a registered domestic partnership established in accordance with subdivision (b) of Section 297 of the Family Code.

The second part of subdivision (a) confers standing on other certain individuals, but only if the decedent had no surviving issue. “Issue of a person means all his or her lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent.” (Prob. Code, § 50.)

If the decedent did not have surviving issue, then standing is conferred on anyone who would be entitled to the decedent’s property via intestate succession. Intestate succession refers to the process that specifies which heirs are entitled to a person’s estate when that person dies without a will. (Prob. Code, § 6401 et. seq.)

If the decedent dies without surviving issue, the decedent’s surviving parents have standing (even if the decedent was married at the time of death) because the parents would be heirs under Probate Code section 6402, subdivision (b). This standing is conferred regardless of whether the parents actually inherited decedent’s assets. It is the fact that they “would be entitled to the property” that controls. If the decedent died without surviving issue or parents, then counsel should go through the intestacy hierarchy chart to ascertain which parties may have standings based on the case-specific circumstances.

Importantly, subdivision (a) was recently amended. It now authorizes a decedent’s legal guardians to bring a wrongful-death action if the decedent’s parents were authorized to bring a civil action but they are deceased, or if the legal guardians were dependent on the decedent and the decedent’s parents are deceased. C.C.P. § 377.60, subd. (b)

Subdivision (b) expands standing beyond the group listed in subdivision (a). A putative spouse, children of the putative spouse, stepchildren and parents can also have standing, so long as they were dependent on the decedent (even if the decedent had surviving issue, and regardless of their status as heirs). For purposes of this subdivision, dependence refers to financial support. (Hazelwood v. Hazelwood (1976) 57 Cal.App.3d 693, 697-698). “The term ‘dependent’ would be rendered virtually meaningless if emotional dependency was sufficient to sue for wrongful death… financial dependency should be the test for parents who are not heirs of the decedent.” (Perry v. Medina (1987) 192 Cal.App.3d 603, 608).

Financial dependence generally presents a question of fact, which “should be determined on a case-by-case basis.” (Perry v. Medina, supra, 192 Cal.App.3d at p. 610). “No strict formula can be applied nor did the Legislature suggest a formula….” (Ibid.) Notwithstanding the absence of an exact formula, published cases have defined financial dependence to be financial support for basic life necessities, or “financial support which aids…in obtaining the things, such as shelter, clothing, food and medical treatment, which one cannot and should not do without.” (Ibid.)

In a common scenario, decedent is survived by a spouse, children, and parents. Since subdivision (a) does not confer standing to parents whose deceased child left surviving issue, the parents can only have standing pursuant to subdivision (b), which requires proof of financial dependency. Plaintiff’s counsel should therefore be thoroughly familiar with subdivision (b) and related case law. Plaintiff’s counsel should also work with the parents to establish their financial dependency on the decedent by obtaining evidence such as receipts, billing statements, bank statements, and other related financial records. Proper preparation of discovery responses and deposition testimony is essential to prove standing for the parents as additional plaintiffs, and thus access to significant wrongful- death damages.

The determination under subdivision (b) is simply a case-by-case analysis. All subdivision (b) claimants have to show is that they “were actually dependent, to some extent, upon the decedent for the necessaries of life.” (Hazelwood, supra, 57 Cal.App.3d at p. 698) (emphasis added). Contrast this with claimants under subdivision (c), who have to prove that they were dependent on the decedent for at least one-half their financial support. It is therefore clear that the legislature did not intend to make such a quantitative threshold upon claimants seeking standing under subdivision (b). This is an important distinction that should be asserted in instances where the defense challenges the extent of the financial support.

Overall, To succeed in a wrongful death lawsuit, you must prove four elements: (1)duty of care; (2)breach of duty; (3)causation; and (4)damages. The Plaintiff must show that the defendant had a responsibility to act safely, failed in that duty, and directly caused your loved one’s death. The right to file a claim is typically reserved for the deceased’s surviving spouse, domestic partner, children, or other dependents. California has a two-year statute of limitations for wrongful death claims from the date of the incident.

Value A Loss Of A Life Regarding Survival Action In California

Can the estate recover for the deceased’s pain and suffering?

As of 2022, the estate may recover for the deceased’s pain and suffering (and disfigurement). And punitive damages are recoverable in a survival cause of action under California law. 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.

Survival Action have different requirements, including who can bring each cause of action and the time limit (statute of limitations) for a lawsuit. California’s statute of limitations to sue for personal injury is usually two years after your accident. If you file after this deadline, the court will dismiss your case unless a legal exception caused your statute of limitations to “toll” (pause).

A common reason for tolling is if there is a gap between the accident and when the injury appears, which often happens with soft-tissue damage and hairline fractures. Under California’s “discovery rule,” the two-year statute of limitation does not start running until the person “discover” he or she has been injured. “Survival” Action – CCP 377.30

The different requirements for a plaintiff to claim survival action are: (1) Brought by personal representative of estate; (2) Compensates the estate for the deceased’s losses; (3) Economic losses recoverable; (4) Pain and suffering recoverable; (5) Punitive damages are recoverable; (6) Suit must be brought by the later of: 2 years from wrongful act or 6 months after death

Wrongful Death and Survival Action Lawsuit Lawyer

We are experienced in pursuing wrongful death actions and survival action lawsuits on behalf of family members of a deceased.  If you have lost a loved one due to the negligence or wrongful conduct of another, we can help you recover for the loss and harms caused by the unlawful conduct. Call The Sterling Firm to speak with an experienced lawyer. Call (310) 498-2750


24/7 SERVICE. CALL OR TEXT 310.498.2750


Justin Sterling, Esq. is a leading personal injury attorney and civil litigator.  Mr. Sterling is the founder of The Sterling Firm, a top-rated law firm with its original headquarters in Los Angeles, California. The Sterling Firm has a client base that stretches not only across the nation but also around the globe. We offer experienced and driven legal counsel for your matter.  We handle insurance claims and civil lawsuits, including those that arise from catastrophic and severe personal injury.

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