What is the difference between a survival action and a wrongful death case?

Wrongful Death and Survival Action Cases Have Distinct Legal Purposes and Consequences in South Carolina

Managing the complex nature of survival action and wrongful death cases in South Carolina hinges on understanding how these legal actions differ. After the tragic loss of a loved one, the trusted wrongful death attorneys at Pracht Injury Lawyers can guide you on this difficult journey. Wrongful death and survival action are two distinctly separate legal claims you may be able to file after someone dies in an accident due to negligence. They differ in purpose and the types of economic and non-economic damages the family may be able to recover in settlement. 

Gain clarity by booking a free consultation with our compassionate legal professionals today. During the no-obligation appointment, we can review your case and help explain your legal options. 

Purpose of Each Legal Claim 

In South Carolina, the definition of a wrongful death claim is a civil action brought against a party for causing a death. Families may also choose to file a survival action at the same time in some cases.

These two types of civil lawsuits have different purposes based largely on the timeframe involved. 

Why File a Wrongful Death Lawsuit?

The South Carolina Code of Laws outlines statutes relating to wrongful death in Sections 15-51-10 through 15-51-60. Article 1 discusses death by wrongful act. Briefly, it allows survivors and beneficiaries to seek compensation when a family member dies due to recklessness or negligence. The family sues the negligent party (or parties), seeking damages relating to the death of their loved one. 

Why File a Survival Action Case?

A survival action is a different type of legal claim. As outlined in Section 15-5-90 of South Carolina’s Code of Laws, a survival action relates to damages that the deceased incurred before they died. This is in contrast with a wrongful death lawsuit, where the damages relate to after the family member has passed away.

With a survival action, the claim is being made on behalf of the deceased. It focuses on the timeframe between the negligent act and their eventual passing. The legal claim “survives” the person’s death. For example, if the victim was in a car crash, but stayed in the hospital for several days or weeks before succumbing to their injuries, a survival action may be possible to address that time of suffering. 

Person Who Can File Each Type of Case

With a personal injury lawsuit, the victim typically files this action themselves. However, when a victim dies as a result of a negligent action, they cannot speak for themselves. With a wrongful death lawsuit and a survival action, someone else speaks for the departed. If applicable, both types of legal action are typically filed together. 

Who Can File a Wrongful Death Suit?

If the deceased has a last will and testament, they likely named an executor or administrator for their estate. This legal representative can file a wrongful death lawsuit on their behalf. Often, it’s the spouse of the deceased who files the civil suit in South Carolina. Depending on the case, the victim’s parents or children may also be eligible to file. Beyond that, the legal right is passed on to other heirs of the deceased. 

Who Can File a Survival Action?

While a survival action is a distinctly separate legal claim, the entity filing the wrongful death action is typically the same as the one who files a survival action. This is the executor or administrator named in the will or their personal representative. It may also be a spouse, child, parent, or heir. 

Recovering Damages and Seeking Compensation

Wrongful death and survival action cases address different forms of economic and non-economic damages. This is true whether the death happened due to a drunk driving crash, premises liability incident, or medical malpractice. In both actions, compensation is divided between beneficiaries as if the victim died without a will. 

What Are Wrongful Death Damages?

A wrongful death action looks at the damages incurred as a result of a person’s death and its impact on survivors. These can be current costs, expenses, and anticipated future losses. Settlements attempt to compensate families for both financial and non-economic damages. 

Wrongful death damages may include:

• Funeral and burial costs, if not a part of a survival action
• Expected future lost earnings and benefits
• Emotional pain and suffering
• Mental anguish
• Loss of consortium, companionship, or support

Some of these damages are more easily calculated than others. For example, recovering funeral costs can be supported with a bill from the funeral home and other suppliers. 

Other damages are more difficult to quantify. Future lost wages depend on the expected life span or projected career trajectory. Placing a dollar value on loss of support is subjective. Christopher Pracht and the legal team at Pracht Injury Lawyers can assist with this process and help your family receive the fair compensation you deserve. 

What Are Survival Action Damages?

A survival action is brought on behalf of the recently deceased, not the person’s family. It seeks to recover damages from when the person was still alive. For instance, they may have suffered a traumatic brain injury from a truck accident, and not died until months later. 

Potential survival action damages may include:

• Current lost income
• Medical bills and expenses
• Conscious pain and suffering
• Emotional suffering and distress
• Loss of enjoyment in life
• Property damage
• Funeral expenses, if not included in a wrongful death action
• Punitive damages, especially in gross negligence cases

Funeral and burial costs may be included in either a survival action or wrongful death case. But, you cannot seek to recover the same costs twice by including them in both cases. 

Possible Types of Wrongful Death Cases

Many types of accidents can be justification for filing wrongful death and survival action lawsuits in South Carolina. If a loved one dies because of someone else’s negligence, recklessness, or intentional harm, heirs and beneficiaries may be eligible to seek damages.

Examples of wrongful death cases include:

• Drowning accidents at hotels and resorts
• Workplace accidents, like not following safety regulations
• Fatal car crashes and trucking accidents
• Medical malpractice, such as misdiagnosis or mistreatment 
• Nursing home accidents and elder abuse
• Defective products, including faulty tools, appliances, and equipment
• Premises liability cases, like slip and fall accidents
• Boating accidents 

Why Hiring an Experienced Wrongful Death Attorney in South Carolina Makes a Difference

Navigating wrongful death lawsuits and survival actions is a nuanced and complex process. Proving legal liability in these cases is crucial to bring negligent parties to justice.