Wrongful death and survival actions may be the most important and emotionally difficult cases our attorneys file for our clients.
Your family is suffering from an unspeakable loss caused by someone’s negligence, gross negligence, or even an intentional act that resulted in your loved one’s death. What do you do now? How do you move forward?
In the midst of the chaos after the loss of a family member, one more thing that needs to be done is to get compensation for your family’s loss – when your loved one’s death was caused by another person’s negligent or intentional actions, you may be entitled to substantial compensation for your economic and emotional losses and, in some cases, punitive damages.
Wrongful Death and Survival Claims
Wrongful death and survival actions, although two separate claims, are filed together. They are sometimes confused with one another, and there is some overlap, but each type of claim allows the surviving family and heirs to recover damages for the loss of their loved one.
The wrongful death action is based on the damages suffered by the deceased person’s family or heirs, while the survival action is usually based on the pain and suffering of the deceased person before their death.
Wrongful Death Actions
SC Code Section 15-51-10 authorizes a civil action for a wrongful act that causes death:
Whenever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, although the death shall have been caused under such circumstances as make the killing in law a felony. In the event of the death of the wrongdoer, such cause of action shall survive against his personal representative.
The beneficiaries of a wrongful death action are 1) the spouse and children of the deceased person, 2) if there is no spouse or children, the parents of the deceased person, or 3) if there are no parents, the heirs of the deceased person.
In Singletary v. Shuler, decided June 2, 2021, the SC Court of Appeals stated that the personal representative of a person’s estate can file a wrongful death action “when a person’s wrongful or negligent act causes the death of a decedent and the wrongful or negligent act, had it not caused death, would have entitled the injured party to maintain an action to recover damages.”
In most cases, it is a negligence action – we must prove that the defendant 1) owed a duty of care, 2) breached that duty, and 3) that breach was the proximate cause of the plaintiff’s damages.
The types of damages that can be recovered are not based on “the value of the human life lost,” but they are based on the “damages suffered by the beneficiaries from the death.” These damages include:
- Financial loss, including future wages and other benefits lost, funeral expenses, medical bills, and any other financial losses that can be proven,
- Mental shock and anguish,
- Wounded feelings,
- Loss of companionship,
- And “deprivation of the use and comfort of the decedent’s society.”
In cases where the plaintiff is the surviving spouse of the deceased person, financial losses can be presumed from the person’s death.
SC Code Section 15-5-90 authorizes a different but related cause of action that is often called a “survival action:”
Causes of action for and in respect to any and all injuries and trespasses to and upon real estate and any and all injuries to the person or to personal property shall survive both to and against the personal or real representative, as the case may be, of a deceased person and the legal representative of an insolvent person or a defunct or insolvent corporation, any law or rule to the contrary notwithstanding.
In Singletary v. Shuler, the Court of Appeals also addressed survival actions, finding that the personal representative of an estate can also recover for the deceased person’s “conscious pain and suffering” when there is sufficient proof that the deceased person was 1) conscious and 2) simultaneously suffering before their death.
Types of Wrongful Death and Survival Actions
A wrongful death and survival action can be brought any time a person’s death is caused by another person’s negligence or intentional act and includes most types of personal injury claims where death resulted.
Wrongful Death Caused by an Auto Accident
When an automobile accident results in death, the personal representative of the deceased person’s estate can bring a survival action and wrongful death claim against the at-fault driver and recover 1) any damages the deceased person would have been entitled to if they had survived and 2) any damages suffered by the deceased person’s family (see above).
Wrongful Death Caused by a Motorcycle Crash
Unfortunately, motorcyclists are at greater risk of death or serious injury from reckless drivers. The fact that someone was riding a motorcycle is not comparative negligence and is not something a jury is allowed to consider in mitigation – just as with an auto accident, the personal representative of a motorcycle accident victim’s estate can file a wrongful death and survival action against the at-fault driver.
Wrongful Death Caused by a Drunk Driver
When a drunk driver kills someone, it is even more important to aggressively pursue a wrongful death and survivor claim against them, to both 1) compensate your family for the terrible losses you have suffered, and 2) hold the drunk driver accountable.
A wrongful death lawsuit against a drunk driver is more likely to result in a punitive damages award, and there is no damages cap where a defendant was 1) convicted of a felony charge resulting from the accident or 2) driving under the influence of alcohol or drugs.
When we can prove by clear and convincing evidence (a slightly higher burden of proof than preponderance of the evidence, the standard of proof for liability) that the at-fault person or corporation’s behavior was willful, wanton, or reckless, the jury can award punitive damages against the defendant.
SC Code Section 15-32-530 limits a punitive damages award to three times the amount of compensatory damages or $500,000, whichever is greater, but the damages cap is lifted when the defendant was 1) convicted of a felony charge resulting from the accident or 2) driving under the influence of alcohol or drugs.
If your family member has been killed because of someone’s negligence or intentional act, the wrongful death attorneys at Axelrod and Associates will investigate your wrongful death claim, file a wrongful death and survival claim on your behalf, aggressively pursue full and fair compensation for your family, and fight to hold the guilty party accountable for their actions.