Wrongful death lawsuits arise out of a death that occurred as a result of another person or entity's negligent, reckless, or intentional behavior. The purpose is to compensate those who lost a loved one and suffered an injury due to that loss.
A survival action is based on the idea that an individual's death should not bar a lawsuit. If a person who suffered injury instead of death could file a lawsuit, an estate should not be banned from filing a similar action.
Beginning in 2022, California amended its survival action statute. This change could affect how people choose to file both wrongful death and survival action lawsuits.
The Difference Between Wrongful Death and Survival Action
Although the two statutes sound similar and share the same inciting event – an individual's death – they vary in their purpose. A wrongful death lawsuit is for the losses suffered by a deceased person's family members. In contrast, the heirs or representatives of the deceased person's estate file a survival action on behalf of the estate.
Another difference between the two is that punitive damages may be awarded in survival actions but never, with one exception, in wrongful death lawsuits.
On January 1, 2022, an amendment to California's survival action statute went into force. This new section allows survivors and representatives to sue for pain, suffering, and disfigurement suffered by the deceased.
This new section is scheduled to be effective for a limited period. It began for actions filed on or after January 1, 2022 and ends on January 1, 2026. Cases that were filed before this period but have been granted trial preference may also make use of this new law. Trial preference is granted to those over 70 years of age or who suffer from poor health.
Who Can File a Wrongful Death Lawsuit?
Only people with certain relationships with the deceased may file a wrongful death lawsuit. The people most likely to file are:
- A Spouse
- Domestic Partner
- Surviving children
- Surviving grandchildren, if the children are deceased
- Parents or guardians
If the deceased did have any of the above relatives, the person who can file the lawsuit is who would inherit under intestate succession, which is the legal term for dying without a will. In addition, any person who was financially dependent on the deceased individual may file a wrongful death lawsuit.
Similar to other negligence lawsuits, the plaintiff must show that the defendant:
- Had a duty of care
- Failed in that duty of care, whether by action or inaction
- That failure was the proximate cause of the decedent's death
Types of Damages
Once a plaintiff proves the defendant's actions caused the death, the question becomes what damages will be awarded. As stated above, punitive damages are seldom awarded in wrongful death lawsuits.
Both economic and non-economic losses may be considered when determining damages. Economic losses may include the decedent's lost income or burial expenses.
Non-economic damages cannot include the plaintiff's pain and suffering caused by the decedent's death. What non-economic damages do cover:
- Society and companionship
- Moral support
- Training and guidance
- Sexual relations
In other words, what the relationship with the deceased individual provided to a plaintiff.
In some situations, wrongful death will also result in criminal charges. A criminal conviction is not required to win a wrongful death lawsuit because of the different standards of proof between criminal and civil law.
Criminal law requires the highest level of proof, which is beyond a reasonable doubt. In comparison, Civil law requires a preponderance of the evidence, which means more likely than not. An individual acquitted of criminal charges may still be found guilty in a civil wrongful death action.
One situation when a criminal conviction matters is when a felony homicide caused the wrongful death. The one exception to the bar on punitive damages is when the defendant in a wrongful death action is convicted of felony homicide. If convicted, a jury may decide to award punitive damages to the plaintiff.
Time Requirements for Filing
When filing a wrongful death lawsuit, you generally have two years from the day of your loved one's death. The law creates an exception for the following:
- Three years for medical malpractice
- Six months if the defendant is a public or government entity
- If the plaintiff is a minor and the decedent was their parent, the statute of limitations does not begin until the day the child turns 18