Differences Between a “Survival Action” & “Wrongful Death Claim”?

Los Angeles fatal accident attorney

Wrongful death attorney, Michael Ehline

Many surviving victims are affected when a loved one gets launched into eternity by the unfair and destructive conduct of another. Most of all, the problem is how to protect the estate of the departed, and still be able to survive and pay the bills. Furthermore, this issue becomes compounded while there is pending litigation for recompense from the actual life taker.

Many of our attorneys have been deeply affected by the departure of fellow family members and loved ones. Also, in some cases, this was due to the negligence of someone who was ignoring their civil duty. This includes a duty to behave reasonably. Also, this page is written by an award-winning attorney. The author is an honorably discharged Marine. His name is Michael Ehline.

He thinks this information should help injured families and survivors get a better basic comprehension of the distinctions between a wrongful death claim. Thus, he will be contrasting this versus a survivor’s action from the perspective of a lawyer. Also, this is not just any lawyer. Michael is a lawyer who deals in these tragedies as a matter of course. Read below to learn more.

Table of Contents:

Q: What is Wrongful Death Under California Law?

To understand the differences, we must first understand the definitions of each legal claim, as follows:

A: Wrongful death happens when a decedent gets killed from the negligence (or other evil act) of a tort defendant. The survivor, living dependent or beneficiary is allowed to recover monetary damages in certain situations. Most regular people would understand it involves a permanent mental and physical loss of consciousness.

Historical Common Law Rights of Wrongful Death Recovery

Under English “common law,” which is where all tort law came from in America, there was no lawsuit allowed for mortality claims at all. Hence, the early legal scholars explained that the death claims died with the decedent(s). The surviving family was not allowed to sue the evil doer who killed their loved one(s). Thus, in fact, this was a leading reason for feuds of death. Examples of death feuds include the story of the early American Hatfields and McCoys.

  • English Common Law and the Consequences of “Pound of Flesh” Revenge

So as noted above, early America adopted the no monetary recovery for wrongful death English common law rules. After all, we were an English colony. But as in England, this made victims and their families take the law into their hands for revenge. Most states in America later decided this was unfair and dangerous.

Enactment of Statutes to Avoid Retaliation

Hence, their legislatures enacted “wrongful death” and “survival” statutes. Most all states offer some form of recovery for wrongful death. But most states follow general tort law guidelines as in the above video. But each state can have its own exclusive “wrongful death” or “survival” statute. Also, modernly, you are entitled to recover for child injuries resulting in death. Examples include such things as an accidental parking structure accident or medical malpractice. Thus murder and intentional killing is not the only basis of the claim.

The California Survival and Death Jury Instructions

Wrongful death is a subspecies of tort law. So it allows certain individuals to recover money damages for the negligent death of a loved one under certain circumstances. But proving a negligent death case can be difficult. Hence, Jury Instructions got created for California Courts and California juries. So these rules can help assist in proving the necessary elements. These are necessary to show in a negligent death in California. Ehline Law Firm PC are non-commercial publishers of the below educational jury instructions.

The reader is encouraged to retain experienced counsel to decipher these below CACI Jury instructions as follows:

CACI 3921. Wrongful Death (Death Of An Adult) (Revised January 2006). If you decide that [name of plaintiff] has proved [his/her] claim against [name of defendant] for the death of [name of decedent], you also must decide how much money will reasonably compensate [name of plaintiff] for the death of [name of decedent]. This compensation is called “damages.” {Name of plaintiff] does not have to prove the exact amount of these damages. However, you must not speculate or guess in awarding damages. The damages claimed by [name of plaintiff] fall into two categories called economic damages and noneconomic damages. You will be asked to state the two categories of damages separately on the verdict form. [Name of plaintiff] claims the following economic damages: 1. The financial support, if any, that [name of decedent] would have contributed to the family during either the life expectancy that [name of decedent] had before [his/her] death or the life expectancy of [name of plaintiff], whichever is shorter; 2. The loss of gifts or benefits that [name of plaintiff] would have expected to receive from [name of decedent]; 3. Funeral and burial expenses; and 4. The reasonable value of household services that [name of decedent] would have provided. Your award of any future economic damages must be reduced to present cash value. [Name of plaintiff] also claims the following noneconomic damages: 1. The loss of [name of decedent]’s love, companionship,comfort, care, assistance, protection, affection, society, moral support; [and] 1 2’s training and guidance.] No fixed standard exists for deciding the amount of noneconomic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense. [Your award for noneconomic damages should not be reduced to present cash value.]

What You May Not Consider in a Claim

In determining [name of plaintiff]’s loss, do not consider: 1. [Name of plaintiff]’s grief, sorrow, or mental anguish; 2. [Name of decedent]’s pain and suffering; or 3. The poverty or wealth of [name of plaintiff]. In deciding a person’s life expectancy, you may consider, among other factors, the average life expectancy of a person of that age, as well as that person’s health, habits, activities, lifestyle, and occupation. According to [insert source of information], the average life expectancy of a [insert number]-year-old [male/female] is [insert number] years, and the average life expectancy of a [insert number]-year-old [male/female] is [insert number] years. This published information is evidence of how long a person is likely to live but is not conclusive. Some people live longer and others die sooner. [In computing these damages, consider the losses suffered by all plaintiffs and return a verdict of a single amount for all plaintiffs. I will divide the amount [among/between] the plaintiffs.]

Q: What are the Differences Between a Survival Action and Wrongful Death Action?

A: There are many important distinctions between a wrongful death action allowed by Code Civ. Proc. Sec. 377.60 et seq., and a survival action authorized by Code Civ. Proc.Sec. 377.30 et seq.

These distinctions are inter alia: (a) the recoverable damages are distinct & also mutually exclusive; (b) the people who are allowed to recover may be entitled to different theories of the recovery; (c) the statute of limitations may run at a different times; and (d) a decedent’s personal representative is required to commence a survival action.

Funeral and Burial Expenses Distinguished

So wrongful death cases are supposed to pay someone left behind for damages from the fatality and loss. Hence, those persons may also recover funeral and burial costs. Also, unlike a survival action, victims may seek the present value of the losses of decedent’s future financial support. Last, the value of the loss of the decedent’s love, care, comfort and society are included. Consequently, these are called recoverable damages. But unless provided by law, this does not include punitive damages.

Contrast With Survival Claims – These Belonged to The Dead Victim Before Passing Away

Conversely, a survival action is a cause of action that belonged to the decedent (dead person). So this is the person who passed on.  Thus, his or her expiration means the claims went to the decedent’s estate. The survivors are beneficiaries of the estate. These distinctions get discussed thoroughly below.

What Can the Survivor’s Estate Recover?

The estate can recover medical expenses and lost earnings incurred by the deceased before death. Also, in certain circumstances, punitive damages may be sought. But the estate in California courts, under all circumstances, may recover all damages allowed under Code Civ. Proc.Sec. 377.61. Under Code Civ. Proc. Sec. 377.60, only people mentioned in the statute can recover these damages.

But in a survival action, the Plaintiff’s recovery may be made by any person entitled to inherit. So they get money if they have claims to the decedent’s estate. Also, this could be a will or trust. (See e.g., Code Civ. Proc. Sec. 377.30 (claims pass to decedent’s successors in interest and made subject to specified provisions of probate code.)

Who Can Bring a Survival Action?

As noted above, anyone entitled to inherit is allowed to bring a survivor’s actions. But a person other than the persons entitled to bring a wrongful death action may have the right to recover.

Statute Of Limitations to Bring the Actions

Claims made under Code Civ. Proc. Sec. 377.60 have a two-year statute of limitations. Also, this authority gets provided under Code Civ. Proc. Sec. 335.1. Last, this begins to run on the date of death. (Witkin, 6 Summary of California L., Torts Sec.1198 (9th ed.).)

But in a survival action, the statute of limitations starts running on the date the claim arose to the deceased. Also, this gets lengthened sometimes. (See, e.g., Witkin, 12 Summary of California L., Wills, and Probate Sec. 491 (9th ed.); see also Code Civ. Proc. Sec. 366.1 (which provides the time limits for the action.)

Q: Can a Survivor Recover Pain & Suffering Damages in a Wrongful Death of a Dependent Adult/EDACPA Action?

A: Yes. According to the California Jury Instructions (CACI) the can. Hence, in certain situations, the traditional rule that pain and suffering and punitive damages cannot become recoverable in a wrongful death action are abrogated by statute. The latest jury instructions are instructive. They back up the value of having a lawyer in California. This is a jurist who understands elder and dependent adult abuse.

Standard of Proof for Pain and Suffering Damages

The standard of proof is higher for punitive damages. But it is instructive to look at the standard for typical damages. But this only requires clear and convincing evidence. So if you were to look at a scale, preponderance of the evidence standard in a civil case would be a slight tilt. All that is required is a tip of the scale in your favor. But punitive damages require clear and convincing evidence. Thus, it is much harder to prove. It requires a much greater tip of the scales.

Contrast The Criminal Case Damages Standard

In a criminal case, a much higher standard of evidence is required. Hence, this called the “beyond a reasonable doubt standard.” Consequently, this is how O.J. Simpson got off in the criminal case. But you will recall he was found liable in his later civil case. That was for the wrongful death of his wife and Mr. Goldman.

Hence, clear and convincing evidence is in the middle of the preponderance of the evidence standard. But  it is less than the “beyond reasonable doubt.” The last one is the criminal law standard. Clear and convincing is far more difficult to prove than the “preponderance of the evidence standard.” However, it is not impossible.


Recovery of money for pain and suffering and even punitive damages appears to be the primary difference in these two types of approaches. We hope you enjoyed “California Attorneys Discuss Differences Between Wrongful Death and Survival Action.”  Also, we invite you to learn more about our law firm’s distinguished track record for prosperity. Find out how to retain expert counsel for loss of life. Also, learn how to avoid fatal electrocutions. Click below to obtain more free advice about statutory laws related to repose in California.

  1. The loss of the enjoyment of sexual relations.
  2. The loss of [name of decedent
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