25 May Wrongful Death Versus Survival Action
The death of a loved one is traumatic and devastating experience— regardless of the cause. However, the ordeal can be especially upsetting if the death could have been avoided had it not been for the negligent actions of another.
In Florida, surviving family members and loved ones may be able to recover compensation for the damages, pain, and suffering associated with an injured party’s death. Typically, there are two different types of claims you can file after the death of a loved one—wrongful death and survival action.
Though wrongful death and survival action claims are sometimes confused, there are several key distinctions.
Wrongful death claims. A wrongful death claim occurs when a person dies as a direct result of another’s reckless, intentional, or negligent conduct. Since the victim is unable to file a claim against the responsible party, certain family members can file a wrongful death claim for emotional grief and other damages suffered. Under Florida’s wrongful death act, the deceased party’s surviving spouses, parents, or children can recover compensation for damages such as loss of financial or parental support, loss of household assistance, and funeral expenses.
In awarding damages in wrongful death cases, the jury will consider factors such as relationship to the deceased party, the value of the decedent’s probable net income, and the replacement value of the deceased party’s services to the survivor.
Survival action claims. Alternatively, the surviving family may choose to file a survival action claim after the death of an injured party. Effectively, a survival action claim is an extension of an already existing legal claim that was already being sought prior to the injured party’s death. Unlike a wrongful death claim, a survival action claim does not identify the death as the direct result of the injury for which damages are sought.
Instead, a survival action claim seeks to recover damages for the substantial pain and suffering the injured party suffered before their death. Damages for survival claims include compensation that the deceased party would have been able to recover had he or she not died before filing a personal injury claim. This could include loss of income, medical expenses, and overall pain and suffering before the time of death. In order to determine the amount of damages owed, the courts may look to factors such as the severity of pain, the duration of suffering, and the apprehension of impending death.
Let’s take a look at a couple of examples. Imagine Mary was involved in a slip-and-fall accident in a supermarket due to a slippery floor. Mary hit her head in the fall, and died two weeks later due to the traumatic brain injury she suffered as a result of the fall. In this scenario, Mary’s surviving spouse, children, or parents could file a wrongful death claim against the supermarket for the losses they suffered as a result of Mary’s death.
Alternatively, let’s say Mary survived her trip-and-fall accident with a broken hip and some nasty bruises. Mary filed a claim against the supermarket to recover compensation for her medical expenses, lost wages, and overall pain and suffering. However, before the claim was resolved, Mary was struck by a car and killed. In this situation, Mary’s surviving family could pursue a survival action claim against the supermarket to recover the compensation Mary would have been able to recover had she survived.
Typically, Florida courts require you to choose between seeking a wrongful death or survival action claim. Talk to a Florida attorney with experience in wrongful death to determine the best option for your unique situation. With the help of a compassionate and experienced attorney, you can pursue the justice the decedent deserved and the compensation you need.
About the Author:
Steven Slootsky is a 1985 graduate of Nova Law School, which means he’s been a practicing Fort Lauderdale injury lawyer for more than 2 decades. He founded the Law Offices of The Injury Law Firm of South Florida in 1991. The Fort Lauderdale-based accident attorney is a member of the Florida Bar, as well as the Federal Bar for the Southern District for the U.S. District Court. During his career as a personal injury lawyer/auto accident compensation attorney, Steven has served as the co-chair of the Worker’s Compensation section for Broward County, Florida. He is also a Bronze member of the Florida Workers Advocates, a former member of the board, and serves as an “Eagle” member of the Florida Academy of Trial Lawyers.