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Survival Cause of Action

What is Survival Cause of Action?

California dies as a result of negligence, recklessness, or intentional wrongdoing: A wrongful death lawsuit, to compensate the survivors for their losses, and/or A survival lawsuit, to compensate the estate for losses suffered by the deceased person prior to death.

California Code of Civil Procedure 377.30 authorizes survivorship actions. As a result, the right to sue for damages "survives" the decedent's death. Defining the difference between wrongful death and survival actions. The surviving family members are not compensated for their losses in a wrongful death lawsuit in California. Instead, a survival action lets the estate sue for losses incurred by the decedent before he or she died due to the wrongful act.


Medical bills, lost wages, and/or personal property damages are among the damages recoverable in a survival action.

After a wrongful act but before the death, damages are sustained. A survival action is not possible in cases where the wrongful act caused instantaneous death. A survival cause of action is appropriate so long as the victim has survived long enough to sustain some kind of economic damage, no matter how minor.


There are several examples of decedents whose estates can file survival actions: A senior citizen who died as a result of nursing home neglect or abuse, Someone who died in the ambulance after being shot, A drowning victim who died even though paramedics performed CPR for several minutes, A victim of an explosive device whose clothing and backpack were destroyed during the blast.


Deceased’s Pain And Suffering

Deceased’s Pain And Suffering

In 2022, the estate will have the right to recover pain and suffering on behalf of the deceased. In California, punitive damages can be recovered in a survival claim. Survival action is a powerful tool for recovering monetary damages from the wrongdoer since they are not recoverable in a wrongful death lawsuit.

Wrongful Death And A Survivor Action

Wrongful Death And A Survivor Action

It is possible to bring separate or combined wrongful death and survival actions. It is important to remember that they are separate causes of action, regardless of whether they are included in one lawsuit. There are different requirements for each, such as who can bring each cause of action and the time limit (statute of limitations) within which the suit must be filed.

“Survival” Cause Of Action

“Survival” Cause Of Action

A plaintiff's right to sue normally expires when the plaintiff dies. Statutes that allow a lawsuit to "survive" the plaintiff's death are an exception. Among them is California's "survival" cause of action statute, Code of Civil Procedure 377.30. The statute allows the personal representative of the estate of a deceased person (deceased person) to sue for damages the decedent could have brought had he or she not died.


The purpose of wrongful death and survival claims is to compensate different parties for their losses. In the second, the estate is compensated for losses incurred by the decedent before his or her death. On the other hand, a wrongful death lawsuit compensates the family members for their own losses.


The personal representative of the decedent must bring a survival action under Code of Civil Procedure 377.30. A successor may bring the action if there is no personal representative. The personal representative of the estate is typically a member of the decedent's family. The individual does not have to be a family member. Lawyers, accountants, friends, and others named in the decedent's trust or will may represent the estates of decedents.

Recoverable Damages

Recoverable Damages For Survivor Action

In a survivor action, the victim is only entitled to recover damages for actual economic (monetary) losses 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. 


California courts are fairly generous in determining that economic damages are sufficient for an estate to maintain a survival cause of action. Consequently, even a slight delay before death occurs will usually result in some kind of economic injury, even if it is only minor damage to clothing or other personal property.


In a survival action, economic damages typically consist of (but are not limited to) medical bills the decedent incurred as a result of the wrongful act, damage to the decedent's property during the wrongful act, and/or wages the decedent lost between the date of the wrongful act and the date of death.

Recovering Punitive Damages

Recovering Punitive Damages For Survival Cause of Action

It is possible to recover punitive damages through a survival cause of action. There is a significant difference between a wrongful death lawsuit and a survivor action. Punitive damages cannot be recovered under California's wrongful death law. Punitive damages, however, may only be granted if the victim has suffered some economic (monetary) damages before death, regardless of how small they may be.

In most cases, economic damages can be claimed in a survivor suit as long as the victim survived even for a short time. In this way, people who commit malicious wrongs - such as murder - cannot get away with it "for free".


Take, for example, the case of O.J. Simpson. Simpson was accused of murdering his wife, Nicole Brown, and her friend, Ronald Goldman.


Simpson was found not guilty by a jury at his criminal trial. Simpson was sued by the families of Brown and Goldman for both wrongful death and a survival cause of action. Because the victims died almost immediately, the court found only nominal (minimal) economic damage in the survivor case.


Even so, the court awarded each victim's estate $12.5 million in punitive damages.

The reason for this is that, in a survival action, punitive damages are determined based in part on the actual harm the decedent suffered. By contrast, in a wrongful death case, the estate is entitled to recover only limited economic damages.

Calculating Punitive Damages

Calculating Punitive Damages In A Survivor Action

In addition to punishing particularly blameworthy wrongdoers, punitive damages serve as an example to discourage others from acting in the same way. It is considered particularly blameworthy if the defendant engaged in "malice, fraud, or oppression." This refers to acts committed with a willful and conscious disregard for the rights or safety of others. Punitive damages are calculated 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.


A victim's actual harm is different from the economic damages he or she suffered before his or her death. There is a possibility that it is far greater, as in the O.J. Simpson case. An example such as this illustrates why a wrongful death action should always be combined with a survivor action.

Statute Of Limitations

Statute Of Limitations For A Survivor Action

The wrongful act causes the victim's cause of action to accrue (begin to run). An action for wrongful death occurs only after the decedent has passed away. A survivor action may be brought up to two years after the wrongful act has occurred or six months after the death of the decedent.


There may be some cases in which the time limit for bringing a survivor action and a wrongful death suit is the same or almost the same, such as when there is a near-immediate death caused by the wrongful act.


In some cases, one may be sooner than the other - sometimes by only a few days, sometimes by much longer. The only way to recover punitive damages for a wrongfully caused death is through a survivor action, so it is vital to file suit within the correct statute of limitations. As your attorney, I can ensure you file suit within the appropriate time frame.

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