What Is the Difference Between Wrongful Death and Survival Actions?
In New Jersey, a wrongful death claim aims to compensate surviving family members for their losses caused by the unexpected death of a loved one, while a survival action offers compensation for what the deceased person experienced (e.g., physical pain, emotional suffering and medical bills). Both are types of civil claims that can be filed if there is proof of negligence in connection with a death. Because these legal paths involve distinct rules and filing deadlines, it is highly recommended that you consult a New Jersey wrongful death lawyer to ensure your family’s rights are fully protected.
What Is a Wrongful Death Claim in New Jersey?
In New Jersey, when someone dies because of another person’s “wrongful act, neglect or default” (New Jersey Statutes Annotated §2A:31-1), surviving family members have the right to bring a wrongful death cause of action against the at-fault person or party.
In general, a wrongful death claim can be filed if the person killed would have had grounds to bring a personal injury claim against the same defendant, had death not ensued. Common accidents behind these claims are motor vehicle accidents, slip and fall accidents, workplace fatalities, medical malpractice, and acts of violence.
What Is a Survival Action?
Under the New Jersey Survivor Act, a “survival action” can be filed by the administrator of a deceased person’s estate to seek financial damages for harm and expenses suffered by the decedent between the date of the accident and his or her death. Similar to a personal injury claim, a survival action seeks recompense for the victim’s economic and non-economic damages. In this way, it is a personal injury action that “survives” the death of the claimant.
Types of Damages Available in a Wrongful Death Claim vs. Survival Action
The purpose of a wrongful death claim is to make the victim’s family “whole again” as much as possible by reimbursing them for pecuniary losses suffered due to the sudden death of a relative. Available types of damages in a wrongful death case include:
- Funeral and burial costs (up to a reasonable limit)
- Medical bills passed onto the family
- Loss of the decedent’s earnings and financial support
- Loss of inheritance
- Loss of consortium (care, companionship, love and guidance)
- The value of lost household services
A survival action, on the other hand, focuses on losses suffered by the deceased person prior to death. Compensation available for this type of case can include:
- The decedent’s pain and suffering
- Disability or impairment
- Emotional distress or damage
- Loss of enjoyment
- Lost wages from the date of the accident until the date of death
- Medical bills or debts
There is also a difference in who is eligible to receive damages awarded. In a wrongful death claim, a settlement or judgment will be distributed to the decedent’s surviving heirs or beneficiaries who are entitled to inherit. Compensation from a survival action, on the other hand, is paid to the decedent’s estate.
What Is the Statute of Limitations?
In New Jersey, the statute of limitations or deadline for filing a wrongful death claim is two years from the date of the deceased person’s death. A survival action must be filed on behalf of the decedent within two years of the injury, not the date of death. However, there is no statute of limitations if the death was caused by a felony crime that the defendant was later convicted of, such as murder or manslaughter.
To find out if your family has the right to file a wrongful death claim and/or a survival action in New Jersey, contact the Law Offices of Jeffrey S. Hasson, P.C., for a free consultation.