The Difference Between Wrongful Death and Survival Actions in South Carolina

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Wrongful death and survival actions are legal claims that can be filed against at-fault parties whose actions negligently resulted in the death of a loved one. Although these two lawsuits share some similarities, there are several important distinctions between them.

A knowledgeable Aiken wrongful death attorney can help you and your family pursue justice by filing a wrongful death and survival action against the party that caused the preventable death.

Reach out to The Law Office of Taylor S. Braithwaite to get started.

What Is a Wrongful Death Lawsuit?

A wrongful death lawsuit is similar to a personal injury claim, the difference being that the negligent conduct resulted in the death and not just the injury of the victim. Many of the same types of accidents such as car crashes, medical malpractice, and slips and falls that lead to a personal injury claim can be the basis of a wrongful death lawsuit.

In general, these actions seek compensation (known as damages) for the harm caused by another person’s negligent or reckless behavior. They are filed by family members through the executor or administrator of the deceased victim’s estate.

Losing a loved one in an untimely and sudden manner can be both emotionally and personally devastating. Wrongful death claims allow eligible family members of the deceased to demand such damages as:

  • Funeral and burial expenses
  • Medical expenses incurred before death
  • Lost wages and financial support
  • Pain and suffering
  • Mental anguish
  • Loss of companionship, support, comfort, and society
  • Punitive (also known as exemplary) damages for especially malicious, wanton, or reckless conduct

To prevail in a wrongful death claim, the plaintiff must prove the following elements:

  • Duty: This means the defendant owed a duty of care to the deceased party. If, for example, the death resulted from a car accident, the plaintiff would argue that the driver owed the deceased victim the duty to drive safely.
  • Breach: It must be shown that, by some negligent or reckless act, the defendant breached the duty of care. Using the car accident scenario, examples may include drunk driving or speeding.
  • Causation: The fatal injuries that the victim suffered must have been directly caused by the breach and not by some other, intervening cause.
  • Damages: The plaintiff must prove the nature and amount of the damages listed above.

Who Is Compensated In a Wrongful Death Lawsuit?

The law requires that if a jury awards damages in a wrongful death lawsuit, the estate executor or administrator must divide the money among eligible survivors, who include the deceased victim:

  • Spouse and children
  • Parents, if there is no spouse or children
  • Heirs of the deceased if none of the above are available

“Heirs” may include grandparents, great-grandparents, and other blood relatives. They are individuals to whom a court would distribute the assets of someone who died without a will.

What Is a Survival Action?

The primary objective of a survival action is to recover damages that the victim suffered between the time of the accident and when the victim passed away. The basis of the claim is that the victim survived the initial accident and experienced financial and personal losses for which he or she might have sought damages if he or she had survived.

A survival action therefore allows the deceased victim’s estate to seek damages for the victim’s suffering before death and expenses incurred due to the injury and death.

These lawsuits seek compensation for economic damages (which are objective) associated with the decedent’s death along with non-economic damages (which are more subjective) that would have been owed to the deceased victim.

Damages may include compensation for:

  • Medical expenses
  • Lost income
  • The victim’s pain, suffering, and mental anguish
  • Punitive damages

Who Is Compensated In a Survival Action?

The deceased victim’s estate files the survival action on behalf of the victim. After the estate’s debts are paid, any remaining funds would pass to the victim’s heirs. These would be individuals who are either named in a last will and testament or, in the absence of a will, those who would inherit through the state’s intestacy statute.

Wrongful Death vs Survival Action: What Is the Difference?

While these actions sound similar to each other, there are some critical differences. Whereas wrongful death lawsuits are filed by family members through the estate, survival actions are filed by the estate on behalf of the recently deceased victim. Survival actions are filed when an individual has been seriously injured due to another person’s negligence but does not immediately die.

If an individual were to be hurt in an accident but survived the injuries, he or she could take legal action against the at-fault party. When the victim dies, this right to sue doesn’t disappear; it simply transfers to the deceased victim’s estate and becomes a survival action.

These differences mean that the damages, while similar, are also different. Survival actions can include damages like those listed above that the victim incurred between the time of the accident and death. But because survival actions are brought on behalf of the recently deceased victim, rather than that victim’s family, there is no recovery for damages suffered after the person’s death. Those post-death damages are handled in a wrongful death lawsuit.

Can a Wrongful Death Claim and a Survival Action Be Filed Together?

Because of the similarities in damages and the underlying cause of death, wrongful death and survival actions can be and typically are filed together. By filing both actions, it is easier for both the surviving family members and the estate to win the compensation they deserve. Filing the two at the same time also ensures that all expenses and losses associated with the victim’s death, both economic and non-economic, are accounted for.

Helping Your Family Seek the Justice You Deserve

The differences between wrongful death lawsuits and survival actions can be confusing, and pursuing justice against the at-fault party is certainly a challenge. For this reason, you need a seasoned wrongful death and survival action attorney who understands the South Carolina laws concerning these claims.

This is where TSB Injury Law comes in. If a family member of yours lost their life due to another party’s negligent conduct, give our firm a call. You can schedule your initial consultation today at (803) 220-0000 or online.


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