What Is the Difference Between a Wrongful Death Claim and a Survival Action?

What Is the Difference Between a Wrongful Death Claim and a Survival Action?
What Is the Difference Between a Wrongful Death Claim and a Survival Action?

Losing a loved one is always tragic. When your family member dies as a result of another person’s negligence, however, it can be even more devastating. In addition to grief, you may experience a number of emotions — including anger at the person responsible for your loss.

While nothing will bring your loved one back, there are ways that you can seek justice and be compensated in these situations. In Pennsylvania, there are two options for filing a claim to recover damages: a wrongful death claim or a survival action. Both lawsuits offer the ability to pursue financial recovery for your family member’s death, but with significant differences between the purpose and mechanisms for doing so.

Understanding the differences between a wrongful death claim and a survival action can help you make a more informed decision if you are even in the difficult position of grieving a loved one who died as a result of another person’s negligence. A Philadelphia wrongful death attorney can work with you to help you understand your choices and make the best decision for your family.


Wrongful Death Claims

In Pennsylvania, a wrongful death claim can be brought whenever a person is killed as a result of the negligence, recklessness or intentional act of another person. These types of claims can arise from a number of different types of accidents, such as car crashes, medical malpractice, construction accidents, and even slip and falls. If a person is killed due to the fault of another person, it may be possible to bring a wrongful death lawsuit.

A wrongful death action is a specific type of legal claim that is brought for the benefit of a person’s beneficiaries. It is brought on behalf of the deceased person’s family members — their spouse, children or parents. A wrongful death action can be filed by a personal representative on behalf of the surviving family.

In a wrongful death claim, the lawsuit will seek damages that are designed to compensate the family for the loss that they have experienced as a result of their loved ones death. These damages will vary, but they will typically include:

  • Medical expenses;
    • Expenses related to the death itself, including funeral and burial costs, and the expenses related to estate administration;
    • The value of the deceased’s person’s anticipated financial contributions to the family;
    • The monetary value of support to the family for society, comfort and services; and
    • Compensation to the children for the loss of support and services that would have been provided by their deceased parent.

As a general rule, damages that are recovered through a wrongful death claim in Pennsylvania are not subject to inheritance tax. Instead, it is distributed under Pennsylvania’s estate law as though the deceased person did not have a will.


Survival Actions

In contrast to a wrongful death claim, a survival action is not made on behalf of the surviving family members. Instead, it is an action brought on behalf of the deceased person’s estate to compensate the person who died.

A survival action is brought by the administrator of the deceased person’s estate. In essence, the claims that a person would have had if they had survived the accident that killed them can be brought by the estate in a survival action.

Damages in a survival action may include pain and suffering, loss of gross earning power from the date of injury through death, and loss of earning power minus personal maintenance expenses from the time of death through the deceased person’s estimated working life span.

Because a survival action is a direct claim made by the estate on behalf of the person who died, the proceeds of this type of lawsuit go directly into the estate. Any settlement or judgment recovered as a result of a survival action may be subject to inheritance taxes as a result.


How Are Wrongful Death Claims and Survival Actions Different?


The first difference between a wrongful death claim and a survival action is who can bring the claim. A wrongful death lawsuit is brought on behalf of the spouse, parents or children. In contrast, a survival action is brought on behalf of the deceased person by the personal representative of the estate.

The second difference is between the two types of claims is the type of damages that are recoverable. In wrongful death claims, the focus is on the losses suffered by the family: loss of income and support, the loss of the deceased person’s companionship, and medical and funeral expenses. In contrast, a survival action seeks damages for the deceased person’s losses as though he had survived the accident, such as for pain and suffering.

The third difference lays in how the damages are distributed. In a wrongful death claim, the damages are distributed through Pennsylvania’s intestacy rules, and are not subject to estate taxes or claims against the estate. In contrast, damages in a survival action are distributed under the terms of a deceased person’s will, and are subject to both estate taxes and claims by creditors.

There is one significant commonality between both kinds of claims. For both wrongful death claims and survival actions, the statute of limitations is two years — the same as for all negligence claims in Pennsylvania. However, because these types of cases can be complex, and the statute of limitations is subject to exceptions, it is important to consult with a lawyer as soon as possible after a loved one dies due to the actions of another person.


What Elements Are Needed for a Wrongful Death Claim to Succeed?

Pennsylvania law stipulates that plaintiffs prove specific elements to win a wrongful death claim. These requirements ensure that the defendant(s) bear legal culpability and that a natural occurrence did not bring on the unfortunate circumstance. 


The Defendant(s) Must Have Substantially Contributed to the Death

While all deaths are tragic, many occur without anyone contributing to them. For example, a person may pass away because of natural causes or in a single-vehicle accident with no one else involved. However, many deaths occur because people act with disregard for others’ safety. When this recklessness or neglect causes the death of another, the decedent’s survivors have a claim for wrongful death.    

The law does not require that deaths occur in a specified way to be wrongful. Any death resulting from another’s negligence, carelessness, or breach of duty could be considered wrongful, depending on the facts of the case. The following are the most common forms of negligence that lead to wrongful death claims:  


Intentional Actions

When a person’s ill-intentioned acts result in death, even indirectly, a potential wrongful death claim exists. For example, a company intentionally disposing of toxic chemicals in a river may face a wrongful death claim if its illegal dumping kills people. 


Medical Malpractice


Doctors have a duty to do whatever is medically possible to save a patient’s life. A mistake–such as an incorrect diagnosis–that contributes to the patient’s demise may constitute a medical malpractice wrongful death under the law.


Reckless or Negligent Driving

Many fatal traffic accidents would never have happened if not for a driver’s reckless or negligent vehicle operation. 


The Defendant Must Have a Duty of Care

People have a duty to conduct themselves in a manner that minimizes danger to others.

For instance, all drivers have an inherent duty to operate vehicles safely—reckless driving or DUI breach this duty. According to environmental law, companies must dispose of dangerous waste legally and safely. Pouring hazardous chemicals into a river violates that duty. 

The law also recognizes that individuals and companies must act in certain circumstances, and a failure to do so may constitute wrongful death. For example, a teacher has a duty to intervene if a situation threatens students’ life safety.


A Breach of Duty Contributed to the Death

Plaintiff’s lawyers must also prove that the breach of a legally recognized duty contributed to the death. For example, in an auto accident case, they need to show that the defendant(s) drove unsafely or failed to exercise due caution.

To determine if defendants meet the legal standard of negligence, courts consider how a reasonably prudent person would act in a given situation. For example, a reasonable and prudent person knows that driving while intoxicated or dumping harmful chemicals into a river endangers lives. Given this standard, the defendant’s refusal or failure to act reasonably establishes a wrongful death claim.


There Must Be Causation

The breach of duty needs to have caused the victim’s death. In some situations, a person or company may have breached their duty to act reasonably and prudently, but that violation had nothing to do with the person’s death. For example, a driver may have caused an accident through reckless driving, but the defense could overcome a wrongful death claim if the victim’s death had a different cause. To prevent this, plaintiffs’ lawyers establish the cause or causes of death and present them to the court.


What Elements Prove a Survival Action?

Some wrongful death claims are filed in conjunction with a survival action. Survival actions differ from wrongful death in that they allow courts to award damages the decedent would receive in a personal injury case had he or she survived, such as pain and suffering.

The elements required to establish a survival action differ from a wrongful death claim, though both hinge on the defendant(s) negligence.


The Plaintiff Must be the Legal Representative of the Estate

Upon death, the departed’s assets and liabilities become part of the estate. Therefore, the executor has the role of collecting any debts owed to the deceased and paying all legally entitled creditors. In addition, a survival action allows the estate to collect the sum owed by the defendant(s) for the personal injury, which is a separate award from a wrongful death settlement.


The Decedent Must Have Had a Cause of Action

Since the estate represents the decedent’s interest, it must show the departed had a cause of action. For example, a personal injury claim from a defendant’s reckless driving.


The Decedent Must Have Had Legal Entitlement to Bring the Case if He or She Survived

The estate must demonstrate that the decedent would have a legal claim if he or she were alive.


The Defendant’s Conduct Must Have Caused the Decedent’s Injury

The defendant must have contributed to the decedent’s injury.  


Contact a Philadelphia Wrongful Death Attorney

If your loved one died because of the actions of another person, you may be entitled to file a claim for damages, either through a wrongful death claim or a survival action. A Philadelphia wrongful death attorney can evaluate your case and help you decide the best course of action given your situation.

The experienced legal professionals of Mattiacci Law, LLC are dedicated to working with victims of all types of accidents, including surviving family members of people who have died in wrongful death cases. We have represented clients in a range of wrongful death and survival actions, and put our experience and knowledge to work for each of our clients to help them obtain the best results. Contact us today at 215-914-6919 (Philadelphia office) or 856-219-2481 (New Jersey office), or email us to schedule a free initial consultation.

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