What is a Los Angeles Wrongful Death Action and a Survival Action? What are the Differences?

Q: What is Wrongful Death under California law?

VideoJug: Truths About Wrongful Death

A: Wrongful death happens when a decedent gets killed from the negligence (or other bad act) of a tort a defendant. The survivor, living dependent or beneficiary is allowed to recover monetary damages in certain situations.

Under English "common law" , which is where all tort law came from, there was no lawsuit allowed for wrongful death claims at all. The early legal scholars explained that they thought the death claims died with the decedents. The surviving family was not allowed to sue a wrongdoer who killed their loved one. In fact, this was a leading reason for feuds of death, such as the story of the early American Hatfields and McCoys . Early America adopted the no recovery for wrongful death English common law rules and this made victims and their families take the law into their own hands for revenge. Most states in America later decided this was unfair and dangerous and their legislatures enacted "wrongful death" and "survival" statutes. Most all states offer some form of recovery for a wrongful death. While most states follow general tort law guidelines, every state has its own exclusive "wrongful death" or "survival" statute. You are also entitled to recover for child injuries resulting in death.

The Personal Injury Attorneys at Ehline Law, discuss the differences between wrongful death and survival statutes. This section also includes the CACI Jury Instructions as they relate to California Wrongful Death and Survival Statutes.

Wrongful death is a subspecies of tort law and allows certain individuals to recover money damages for the negligent death of a loved one under certain circumstances. Proving a negligent death case can be difficult. Jury Instructions are created for California Courts and California juries to assist them in proving the necessary elements in a negligent death in California.

Ehline Law 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 however. Some of the California Wrongful Death Jury instructions are 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]

[2. The loss of the enjoyment of sexual relations.]

[2. The loss of [name of decedent]'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.]

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. ÔøÔø 377.60 et seq., and a survival action allowed by Code Civ. Proc. ÔøÔø 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 decedentÔøs personal representative is required to commence a survival action.

Since wrongful death cases are supposed to pay someone for wrongful death, those persons may recover funeral and burial costs. Also, the present value of the losses of the decedent's future financial support, the value, if any, of the loss of the decedent's love, care, comfort and society are also included as recoverable. Unless provided by law, however, as discussed, this does no include punitive damages.

Conversely, a survival action is a cause of action that belonged to the decedent (dead person) and passed on his or her expiration to the decedent's estate. That means that the estate can recover medical expenses and lost earnings incurred by the deceased before death as well as punitive damages. But the estate may recover damages allowed under Code Civ. Proc. Ôø 377.61.

Under Code Civ. Proc. Ôø 377.60, only people mentioned in the statute can recover these damages. In a survival action, the PlaintiffÔøs recovery may be made by any person entitled to inherit the decedent's estate. This could be a will, or trust. (See e.g., Code Civ. Proc. Ôø 377.30 (claims pass to decedent's successors in interest and made subject to specified provisions of probate code.) This means that a person other than the persons entitled to bring a wrongful death action may be entitled to recover.

Claims made under Code Civ. Proc. Ôø 377.60 have a two-year statute of limitations as provided under Code Civ. Proc. Ôø 335.1, which begins to run on the date of death. (Witkin, 6 Summary of California L., Torts Ôø 1198 (9th ed.).) But in a survival action, the statute of limitations starts running on the date the claim actually arose to the deceased, and is sometimes lengthened. (See e.g., Witkin, 12 Summary of California L., Wills and Probate Ôø 491 (9th ed.); see also Code Civ. Proc. Ôø 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), in certain situations, the traditional rule that pain and suffering and punitive damages cannot be recovered in a wrongful death action have been abrogated by statute. The latest jury instructions are instructive on the value of having a lawyer in Los Angeles, California who understands elder and dependent adult abuse:

A: If you were to look at a scale, preponderance of the evidence standard in a civil case would be a slight tilt of the scale in your favor. In a criminal case, a much higher standard of evidence is required. This called the Ôøbeyond a reasonable doubt standard.Ôø This is how O.J. Simpson got off in the criminal case, but was found liable in his later civil case for the wrongful death of his wife and Mr. Goldman.

Clear and convincing evidence is in the middle of the preponderance of the evidence standard, and the "beyond reasonable doubt" - criminal law standard. It is a much more difficult burden to prove than preponderance of the evidence standard, but not impossible.

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