May 22, 2020

Survival Action v. Wrongful Death

Death Certificate
to Death Certificate

Many surviving victims suffer after a loved one goes into eternity. Still worse would be the unfair and destructive conduct of another. Most of all, the problem remains how to protect the estate of the departed. Also, how does he survive and pay the bills? And this gets compounded during pending litigation against the life taker.

Many of our wrongful death attorneys have been deeply affected by the deaths of family members and loved ones. Also, in some cases, this was due to the negligence of someone ignoring their duty. And this includes a commitment to behave reasonably.

Also, this page by an award-winning attorney remains an instructive tool for victims. The author remains an honorably discharged Marine. His name, Michael Ehline, has been praised by many.

He thinks this information will help injured families. So now, survivors get better basic knowledge. So now they will know the distinctions. Michael will contrast these from the perspective of a lawyer.

Michael deals in these tragedies as a matter of course. Read below and learn the law.

Table of Contents:

Q: Wrongful Death Under California Law?

Understand the differences.

A: Wrongful death happens after a decedent gets killed from the negligence. (or other evil act). The survivor, living dependent, or beneficiary may recover monetary damages in certain situations.

Common-Law Rights of Wrongful Death Recovery.

Under English “common law,” there was no lawsuit allowed for mortality claims. So the early legal scholars explained that the death claims died with the decedent(s). The surviving family was not allowed to sue. So the evil-doer who killed their loved one(s) go off civilly.

And in fact, this was a principal reason for feuds of death. Examples of death feuds include the story of the early American Hatfields and McCoys.

  • English Common Law and "Pound of Flesh" Revenge.

Early America adopted the no monetary recovery for death English common law rules. After all, we were an English colony. But this made victims and their families seek revenge. Most states in America later decided this was unfair and dangerous.

Enactment of Statutes to Avoid Revenge.

Legislatures enacted “wrongful death” and “survival” statutes to prevent revenge. Most states offer some form of recovery for wrongful death. But most states follow general tort law guidelines. But each state can have its own exclusive “wrongful death” or “survival” statute.

Also, modernly, victims may recover for child deaths. Examples include such things as an accidental parking structure accident or medical malpractice. So murder and intentional killing are not the only basis of the claim.

The California Survival and Death Jury Instructions.

Wrongful death remains a subspecies of tort law. So it allows certain people to recover money damages for the negligent death of a loved one under certain cases. But proving a negligent death case can be difficult. And Jury Instructions exist for Courts and juries.

So these rules can help assist in proving the necessary elements.

Reader is encouraged to retain lawyers to decipher these CACI Jury instructions:

CACI 3921. Wrongful Death (Death Of An Adult) (Revised January 2006).

If you decide that [name of plaintiff] has proved [his/her] claim against [name of defendant] for the death of [name of decedent], you also must decide how much money will reasonably compensate [name of plaintiff] for the death of [name of decedent]. This compensation will be called “damages.” {Name of plaintiff] does not have to prove the exact amount of these damages. However, you must not speculate or guess in awarding damages. The damages claimed by [name of plaintiff] fall into two categories called economic damages and noneconomic damages. You will be asked to state the two categories of damages separately on the verdict form.

[Name of plaintiff] claims the following economic damages:

1. The financial support, if any, that [name of decedent] would have contributed to the family during either the life expectancy that [name of decedent] had before [his/her] death or the life expectancy of [name of plaintiff], whichever is shorter; 2. The loss of gifts or benefits that [name of plaintiff] would have expected to receive from [name of decedent]; 3. Funeral and burial expenses; and 4. The reasonable value of household services that [name of decedent] would have provided.

Future economic damages get reduced to present cash value.

[Name of plaintiff] also claims the following noneconomic damages: 1. The loss of [name of decedent]’s love, companionship, comfort, care, assistance, protection, affection, society, moral support; [and] [2. The loss of the enjoyment of sexual relations.] [2. The loss of [name of decedent]’s training and guidance.] No fixed standard exists for deciding the amount of noneconomic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense. [Your award for noneconomic damages should not be reduced to present cash value.]

What You May Not Consider in a Claim.

In determining [name of plaintiff]’s loss, do not consider:
1. [Name of plaintiff]’s grief, sorrow, or mental anguish; 2. [Name of decedent]’s pain and suffering; or 3. The poverty or wealth of [name of plaintiff]. In deciding a person’s life expectancy, you may consider, among other factors, the average life expectancy of a person of that age, as well as that person’s health, habits, activities, lifestyle, and occupation. According to [insert source of information], the average life expectancy of a [insert number]-year-old [male/female] is [insert number] years, and the average life expectancy of a [insert number]-year-old [male/female] is [insert number] years. This published information is evidence of how long a person is likely to live but is not conclusive. Some people live longer and others die sooner. [In computing these damages, consider the losses suffered by all plaintiffs and return a verdict of a single amount for all plaintiffs. I will divide the amount [among/between] the plaintiffs.]

Q: What are the Differences Between a Survival Action and Wrongful Death Action?

A: There are many distinctions between a wrongful death action under Code Civ. Proc. Sec. 377.60 et seq., and a survival action under Code Civ. Proc.Sec. 377.30 et seq.

These distinctions are inter alia: (a) the recoverable damages are distinct & also mutually exclusive; (b) the people who are allowed to recover may be entitled to different theories of the recovery; (c) the statute of limitations may run at different times, and (d) a decedent’s personal representative is required to commence a survival action.

Funeral and Burial Expenses Contrasted.

So wrongful death cases are supposed to pay someone left behind. The idea is that the defendant covers damages from the fatality. Also, survivors may recover funeral and burial costs.

But unlike a survival action, victims may seek the present value of the losses. And that comes from the loss of decedent’s future financial support.

Last, the value of the loss of the decedent’s love, care, comfort, and society are included. These are called recoverable damages. But unless provided by law, this does not include punitive damages.

Contrast With Survival Claims - These Belonged to The Dead Victim.

Conversely, a survival action belonged to the decedent. (dead person). So this person passed on. Now his or her expiration means the claims went to the decedent’s estate. The survivors are beneficiaries of the estate. These distinctions will be addressed next.

What Can the Survivor’s Estate Recover?

The estate can recover medical expenses and lost earnings incurred by the deceased before death. Also, in certain situations, punitive damages may be sought. But the estate under all cases may recover all damages allowed under Code Civ. Proc.Sec. 377.61. Under Code Civ. Proc. Sec. 377.60, only people mentioned in the statute can recover these damages.

But in a survival action, the Plaintiff may be a person entitled to inherit. So they get money if they have claims with the decedent’s estate. Also, this could be a will or trust. (See, e.g., Code Civ. Proc. Sec. 377.30 (claims passed to decedent’s successors in interest and made subject to specified provisions of probate code).).

Who Can Bring a Survival Action?

As noted above, anyone entitled to inherit may bring a survivor’s action. But a person other than the persons entitled to bring a wrongful death action may have the right to recover.

Statute Of Limitations to Bring the Actions.

Claims made under Code Civ. Proc. Sec. 377.60 has a two-year statute of limitations. Also, this authority gets provided under Code Civ. Proc. Sec. 335.1. Last, this begins to run on the date of death. (Witkin, 6 Summary of California L., Torts Sec.1198 (9th ed.).)

But in a survival action, the statute of limitations starts running on the date the claim arose to the deceased. Also, this gets lengthened sometimes. (See, e.g., Witkin, 12 Summary of California L., Wills, and Probate Sec. 491 (9th ed.); see also Code Civ. Proc. Sec. 366.1 (which provides the time limits for the action.)

Q: Can a Survivor Recover Pain & Suffering Damages in a Wrongful Death of a Dependent Adult/EDACPA Action?

A: Yes. According to the Jury Instructions (CACI) the can. And in certain situations, the traditional rule has become abrogated by statute. The latest jury instructions are instructive. This jurist understands elder and dependent adult abuse.

Standard of Proof for Pain and Suffering Damages.

The standard of proof stays higher for punitive damages. But it can be instructive to look at the norm for typical damages. But this only requires clear and convincing evidence. So if you were to look at a scale, preponderance of proof standard in a civil case would be a slight tilt.

And that tips the scale in your favor. But punitive damages require clear and convincing evidence. Thus, it remains harder to prove. It requires a greater tip of the scales.

Contrast The Criminal Case Damages Standard.

In a criminal case, a higher standard of evidence presents itself. And this called the “beyond a reasonable doubt standard.” Of note, this is how O.J. Simpson got off in the criminal case. But you will recall he was liable in his later civil case. That was for the wrongful death of his wife and Mr. Goldman.

Also, the clear and convincing evidence rule stays in the middle of the preponderance standard. But it is less than the “beyond a reasonable doubt.” The last one is the criminal law standard. Clear and convincing will be harder to prove than the “preponderance of the evidence standard.” However, that's not impossible.


Recovery of money for pain and suffering or punitive damages would be the primary difference in these two approaches. We hope you enjoyed this article. Also, we invite you to learn about our law firm’s impressive track record. Click below to obtain free advice, or call (213) 596-9642.

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