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When the use of a defective product or device results in the wrongful death of a loved one, two types of lawsuits may be asserted by the deceased person’s family – a wrongful death action and a survival action.  These legal theories can sometimes be confusing for clients. This short overview is intended to explain the different monetary damages that may be awarded under these distinct legal remedy principles.

Most people are familiar with the notion that, when a person dies as the result of someone else’s negligence, his or her estate (i.e., personal representative) can bring what is called a “wrongful death” lawsuit.  The wrongful death laws are created by statute and are designed to compensate the deceased’s family members for their losses (see CA Civ. Proc. Code 377.60).  The recovery usually consists of financial damages awarded to the deceased’s beneficiaries.  The usual beneficiaries are the person’s spouse and children and the damages generally include: (1) lost wages or support, (2) loss of companionship, and (3) medical expenses.

By contrast, a survival cause of action can only be brought if the decedent did not immediately die from his or her injuries.   A survival action lawsuit allows the estate to be awarded damages that the deceased incurred from the moment of the injury until the time of death.  The claim essentially “survives” the death of the person (see CA Civ. Proc. Code §377.30) and allows the decedent’s representative to “step into the shoes” of the deceased and recover the damages the departed would have been entitled to had they lived (i.e., pain and suffering and lost earnings).  If the deceased lived for just a short time between the wrongful act and his or her death, then a survival claim may be appropriate.

If you have lost a family member because of the negligence of another, you should consider filing either a wrongful death or survival action lawsuit or, under the right circumstances, both.  Contact the experienced attorneys at Paglialunga & Harris, P.S. for a free, no-obligation evaluation of your case.

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