If you lose a loved one because of the act of another, that action can lead to either or both of two causes of action: one based on the concept of wrongful death, and the other on what is known as a survival action. Although these causes of action can be joined together in a single lawsuit, they are distinct from each other in some significant ways. This post will provide a high-level overview of each legal theory of liability.
If you have suffered the loss of a loved one, whether a wrongful death or survival action or both may be available is a question that a personal injury attorney can help you to determine, as well as help to initiate for you.
Wrongful death. A wrongful death claim is meant mainly for the benefit of the surviving family members of the deceased (but may in some situations be initiated by the personal representative of the decedent's estate), its purpose being to enable them to seek compensation for their losses that follow from the untimely and preventable death. Family members, usually the spouse or children of the decedent, can seek damages for things like funeral and burial expenses, loss of companionship, loss of consortium, and lost earning capacity. Wrongful death claims do not, however, include punitive damages.
Survival action. A survival action is intended for the estate of the deceased, and requires that that person did not die immediately from his injuries. That is, where a wrongful death action is meant to compensate the surviving family members for their loss, the survival action is meant to preserve any cause of action that the decedent himself may have had against the defendant. Thus, instead of the spouse or children, the representative of the decedent's estate is the one who files a survival action.
The damages that the plaintiff may seek in a survival action are those to which the decedent would have been able to claim had he survived the injuries he received, including any punitive damages that may have accrued before the death, but in this situation California law does not allow for the recovery of pain and suffering damages.