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How Do Survival Statutes Affect Injury Lawsuits?

By Aditi Mukherji, JD | Last updated on

When it comes to personal injury lawsuits, what is a "survival statute" and how could it affect your case?

In the vast majority of states, many types of personal injury lawsuits can proceed even after the victim/plaintiff dies. These are called survival actions. Without such a provision, a personal injury case can potentially be dismissed if the victim dies of unrelated causes before the case is resolved.

So what are survival actions and how are they different from wrongful death lawsuits?

Survival Actions v. Wrongful Death Suits

Most states permit survival actions that allow the plaintiff's estate to "take over" the personal injury claim initiated by the decedent before she died.

Survival actions should not be confused with wrongful death actions. They differ in three significant ways:

  1. Victims. Survival actions focus on the injuries suffered by the decedent, while wrongful death actions address injuries to the decedent's family members.
  2. Types of damages available. Survival actions allow the estate to recover damages for the decedent's pain and suffering and economic losses. By contrast, wrongful death actions primarily focus on the financial losses to the decedent's living family members.
  3. Distribution of damages. The damages obtained from a survival action go to the estate, not directly to the family members. The damages are then distributed to the family members pursuant to the decedent's will or, if there is no will, in accordance with state law.

It's important to keep in mind that survival statutes vary from state to state. Some don't include specific types of injury lawsuits -- Illinois' law, for example, doesn't allow slander or libel lawsuits to be assigned to another person after the plaintiff's death.

Other common limitations include whether the plaintiff died of causes unrelated to the personal injury, the state's statute of limitations, and specific laws that effectively bar survival actions altogether.

Recovery for Surviving Relatives

Although survival actions are ostensibly aimed at compensating the plaintiff for his or her injuries, they impact the plaintiff's family members, too.

When a personal injury plaintiff dies of causes unrelated to the injury or abuse allegedly suffered, there is no wrongful death action for his or her family to pursue. In such cases, the family members' only way to obtain monetary damages related to the plaintiff's injuries may be through a survival action.

The availability of survival actions can also impact the ability of plaintiffs to pursue lawsuits while they are still alive, particularly in cases alleging elder abuse. When survival action isn't available, the lawyer may pass on the case altogether.

"If there's a risk the client will die, in our legal system, that often means we can't afford to take the case," Minnesota attorney Joel Smith told the Star Tribune. The paper recently shed light on how a group of elder abuse lawsuits were dismissed after the elderly plaintiffs passed away, pointing to how Minnesota's survival law is worded.

Because many states have complex -- and, in Minnesota's case, evolving -- rules about bringing survival actions, consulting an experienced personal injury attorney in your area about the current law in your particular jurisdiction is strongly advisable.

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