Also known as: survival · wrongful death · survival action · wrongful death action · survival statute · wrongful death statute · survival claim · wrongful death claim
Written by attorneys — see sources below.
2 senses
A tort doctrine supplying two distinct remedies when a person dies: continuation of the decedent's personal-injury claim for pre-death harms and a new statutory action allowing survivors to recover their own losses caused by the death.
A tort doctrine supplying two distinct remedies when a person dies: continuation of the decedent's personal-injury claim for pre-death harms and a new statutory action allowing survivors to recover their own losses caused by the death.
Simon Stern suffered a back injury from a studio light that fell due to the station's negligence. He filed suit for medical costs and pain but died from unrelated sepsis before trial. His executor continues the action yet may recover only for harms Simon experienced before his death.
A requirement that a beneficiary or devisee outlive the decedent to take property under a will or by intestacy, with an alternative devise taking effect upon failure to survive.
Stephen Shaw's will leaves his house to his brother if the brother survives him and otherwise directs the house into the residuary estate. The brother dies two days before Stephen. The residuary clause operates as the alternative devise and the house passes under it.
1 common questions
A requirement that a beneficiary or devisee outlive the decedent to take property under a will or by intestacy, with an alternative devise taking effect upon failure to survive.
Each sense below has its own examples, sources, and questions.
Stella Shapiro bore five children out of wedlock and raised them as her own. After her death from medical negligence, the children sue under the state wrongful death statute. The court permits recovery because the statute must afford equal treatment to all children regardless of legitimacy.
The appellant brought suit on behalf of five illegitimate children against the doctor who treated their mother and the insurance company. The suit sought recovery under a Louisiana statute for damages resulting from the wrongful death of the mother. These damages included compensation for the loss of the mother as well as for her pain and suffering. Louise Levy gave birth to the five children out of wedlock. The children lived with her and she treated them as a parent would treat any other child. She worked as a domestic servant to support them. She took them to church every Sunday and enrolled them at her own expense in a parochial school. The Louisiana District Court dismissed the suit. The Court of Appeal affirmed the dismissal. It held that the term "child" in the statute meant legitimate child. The denial of recovery to illegitimate children rested on morals and general welfare because it discourages bringing children into the world out of wedlock. The Supreme Court of Louisiana denied certiorari. The case reached the United States Supreme Court on appeal. Probable jurisdiction was noted to consider the constitutional challenges under the Due Process and Equal Protection Clauses of the Fourteenth Amendment.
View caseSamuel Soto was injured on a neighbor's property and sued for negligence. He died from unrelated causes before judgment. His estate may continue the suit but recovers only for the pain and medical expenses Samuel incurred before his death.
Nancy Christian was the tenant of an apartment whose lessors had been notified by her on November 1, 1963, that the knob of the cold water faucet on the bathroom basin was cracked and should be replaced. On November 30, 1963, plaintiff Rowland entered the apartment at Christian's invitation as a social guest and was injured while using the bathroom fixtures when the porcelain handle of one of the water faucets broke in his hand. The injury severed the tendons and medial nerve in Rowland's right hand. He incurred medical and hospital expenses, suffered loss of wages, and sustained damage to his clothing. Rowland later filed a complaint alleging that the bathroom fixtures were dangerous, that Christian was aware of the dangerous condition, and that his injuries were proximately caused by her negligence. Christian filed an answer containing a general denial except that she admitted telling the lessors the faucet was defective and should be replaced. She also alleged contributory negligence and assumption of the risk on the ground that Rowland had failed to use his eyesight and knew of the condition of the premises. Christian supported her motion for summary judgment with an affidavit stating that Rowland was a social guest who had used the bathroom on a prior occasion and that the handle broke while he was using the faucet. In opposition, Rowland filed an affidavit stating that immediately prior to the accident he told Christian he was going to use the bathroom facilities, that she had known for two weeks that the faucet handle was cracked, that she had warned the manager of the building of the condition but nothing was done to repair it, that she did not warn him of the condition, and that the handle broke when he turned off the faucet. The trial court granted summary judgment for Christian, and Rowland appealed.
View caseSierra Santos, a seaman, drowned at sea due to unseaworthy conditions on the vessel. Her surviving spouse brings a wrongful death claim in federal court. The action proceeds because general maritime law now supplies a remedy for death on the high seas.
Edward Moragne was a longshoreman employed by Gulf Florida Terminal Company. On April 23, 1967, he was killed while working aboard the vessel Palmetto State in the Port of Miami, Florida. A beam supporting hatch covers fell on him during the stowage of a cargo of fertilizer. Petitioner, his widow and representative of his estate, brought suit in the Circuit Court for Dade County, Florida, against respondent States Marine Lines, Inc., the vessel owner. She sought damages for wrongful death and for pain and suffering prior to death. The claims rested on theories of both negligence and unseaworthiness. States Marine removed the case to the United States District Court for the Middle District of Florida on diversity grounds under 28 U.S.C. §§ 1332 and 1441. It filed a third-party complaint against Gulf Florida Terminal Company. The complaint asserted that any negligence or unseaworthiness resulted from Gulf's stevedoring operations. Both defendants moved to dismiss the wrongful-death claim based on unseaworthiness. The District Court dismissed the unseaworthiness portion of the complaint, citing The Tungus v. Skovgaard, and certified the order for interlocutory appeal under 28 U.S.C. § 1292(b). The Court of Appeals for the Fifth Circuit certified to the Florida Supreme Court the question whether the Florida wrongful-death statute, Fla. Stat. § 768.01, encompassed unseaworthiness. The state court answered in the negative. On return to the Court of Appeals, that court affirmed the dismissal. Earlier related proceedings in state court had produced an affirmance by the Florida District Court of Appeal, 236 So. 2d 80, and denial of certiorari by the Florida Supreme Court, 239 So. 2d 829. The United States Supreme Court granted certiorari.
View caseSpencer Silver was exposed to asbestos products and sued the manufacturer. The company dissolved and its successors were substituted as defendants. The court dismisses the punitive damages claim because the original tortfeasor's death ends liability for punishment.
Workers employed at industrial sites such as Jersey Central Power and Light Company, Hercules, Inc., and Research Cottrell, Inc. were exposed to asbestos products for varying periods between the 1930s and the 1970s. These workers received no warnings, handling instructions, or safety equipment to protect them from the hazards associated with the material. The exposures resulted in diagnoses of asbestosis, mesothelioma, and other asbestos-related illnesses, which appeared only after long latent periods. The affected workers or their surviving widows initiated personal injury and wrongful death actions against manufacturers and distributors including Johns-Manville Products Corp. Six consolidated cases were filed in Middlesex County and assigned to a single trial judge. Jarusewicz involved eighteen power company workers employed between 1930 and 1981, Beshada involved twenty-one pipefitters from 1935 onward, Blazewicz and Hann involved employees of Research Cottrell from 1936 to 1979, Beckwith was brought by the widow of an electrician, and Crilley was a wrongful death action. On September 9, 1981, plaintiffs in four of the cases moved for partial summary judgment to strike the state-of-the-art defense, and the remaining plaintiffs joined the motion. The trial court denied the motion, leading plaintiffs to seek leave to appeal from the Appellate Division, which was denied, and ultimately the Supreme Court of New Jersey granted leave to appeal on February 25, 1982 in five cases and later in the Crilley case.
View case3 common questions
The claim continues in the estate but recovery is confined to harms the decedent actually suffered before death. Future earnings and post-death pain and suffering are not recoverable.
The specific wording of the wrongful death statute governs both who may sue and what losses are compensable. Courts apply the statute's text and judicial interpretations rather than common-law damage rules.
Many jurisdictions bar punitive damages against the tortfeasor's estate because punishment is personal to the wrongdoer. Compensatory damages for pre-death harms remain available.
An alternative devise operates when the primary beneficiary fails to survive the testator. The residuary clause serves as an alternative only if the will expressly so provides.
…generally opposed by the commentators, some States permit the parents of a stillborn child to maintain an action for wrongful death because of prenatal injuries. Such an action, however, would appear to be one to vindicate the parents' interest and is thus consistent with the view that the fetus, at most,…