Torts · Survival Actions
Clear answer to: What Is The Test For Survival Actions in Torts? with key cases, examples, and exam tips for law students.
The test for survival actions in torts allows the estate of a deceased person to pursue a claim for damages that the decedent could have pursued if they were alive. This includes recovery for pain and suffering, lost wages, and medical expenses incurred prior to death.
Survival actions in torts are governed by statutes that allow personal injury claims to survive the death of the injured party. The primary aspect of these actions is to provide that the decedent's estate can recover damages that would have been recoverable had the individual not died, notably including pain and suffering and economic losses incurred before death.
Typically, to establish a survival claim, a plaintiff must demonstrate that the decedent had a valid tort claim at the time of their death. This includes showing that the defendant's conduct was wrongful and that it caused quantifiable damages that the decedent was entitled to recover. The claims must be brought by the personal representative of the decedent's estate, as they stand in the place of the deceased.
The damages recoverable in survival actions are distinct from wrongful death claims, which are brought for the loss suffered by the beneficiaries as a result of the decedent's death. Survival actions focus on the losses the decedent experienced directly prior to their death, while wrongful death claims typically involve loss of companionship, emotional distress, and other resultant damages to the survivors.
In summary, the two key elements for survival actions are the presence of a valid tort claim and the capacity of the estate to pursue damages that were directly associated with the tortious conduct leading up to the decedent's death. Success in a survival action generally hinges on proving the elements of the underlying tort alongside any measures of damages incurred before death.
Consider a car accident where a driver, due to another party's negligence, suffers severe injuries and incurs medical expenses. If the driver passes away due to complications from those injuries, their estate can file a survival action to recover for those medical expenses, pain and suffering experienced from the accident, and any lost wages until the time of death.
Survival actions frequently appear in torts exams, particularly regarding distinguishing them from wrongful death claims and analyzing the elements of proof necessary for establishing the claim.