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Compensating Somebody: Wrongful Death and Survival Actions


Compensating Somebody: Wrongful Death and Survival Actions


We think of “the olden days” as full of dangers, and thank our stars that we live in a “civilized” era. But no one can emerge from the course in Torts without a sobering sense of how dangerous industrialized society is. A few generations back, the major risks were natural ones: disease, natural disasters, and unruly fellow creatures. Today, these have been surpassed by human contrivances, especially that very mixed blessing, the internal combustion engine.

Too often, the products of human genius cause catastrophic injury and untimely death. This chapter addresses two distinct but related types of claims arising from such deaths. First is the wrongful death claim, which is a claim for damages for tortiously causing the death of another. Second is the survival claim, which is an action brought by the representative of the estate of a deceased person (called in legal parlance a “decedent”) for injuries suffered by the decedent before her death.

Although these actions both arise because of the death of the tort victim, they are quite different. Wrongful death statutes usually allow damages for the losses suffered by surviving relatives, such as the loss of economic support or society of the decedent. The survival action, by contrast, allows the estate of a decedent to enforce a tort claim for damages suffered by the decedent before death, which she could have enforced personally had she lived.

Suppose, for example, that Mozart and Haydn are listening to a symphony at the local concert hall when a chandelier, negligently installed by Handel, falls from the ceiling. Mozart is killed instantly. Haydn suffers serious injuries, is hospitalized for seven months, and finally dies of his injuries. At common law, the estates of these decedents would have had no remedies for their injuries, regardless of whether they were negligently inflicted. Under modern tort law, however, Mozart’s death would give rise to a claim for wrongful death. Haydn’s would support both a survival claim for his predeath losses (such as pain and suffering, medical expenses, and lost wages) and a wrongful death claim, since he ultimately died of his injuries.


Let’s first consider the claim arising from Mozart’s death. Mozart died instantly; his estate has no claim for predeath pain and suffering, hospital bills, or disability caused by the accident. The sole injury to be recompensed is the death itself. The issue raised is whether Mozart’s estate or his surviving relatives have any claim against Handel for negligently causing his death.

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