torts · claim
A survival action is a legal claim brought by an estate representative for damages that the deceased would have been entitled to recover had they survived. This includes compensation for medical expenses, lost wages, and pain and suffering experienced by the deceased prior to death.
There must be a tortious act that caused harm to the deceased prior to their death.
What to prove: The claimant must demonstrate that the defendant's actions constituted a legally recognizable tort.
The claim must be one that the deceased could have pursued if they had survived.
What to prove: It must be established that the deceased had a viable claim for damages that was not extinguished by their death.
The individual bringing the claim must be authorized as the personal representative or administrator of the deceased's estate.
What to prove: The claimant must show proper legal standing and authority to represent the estate in the action.
Actual damages suffered by the deceased prior to death must be claimed.
What to prove: The claimant must prove the specific damages incurred by the deceased, such as pain and suffering, medical expenses, and lost income.
The plaintiff (the estate representative) bears the burden of proof, and the standard is typically 'preponderance of the evidence'.
Survival actions may appear on exams in context with wrongful death claims, and may require distinguishing between remedies available in both types of actions.