Survival Action

William Sweeney

I handle probate matters, including wrongful death and survival lawsuits by personal representatives. If you have lost a family member because of the wrongdoing of another or defective product you should consider filing either a wrongful death or survival action lawsuit or both if the circumstances permit. Both wrongful death and survival claims can include death caused by defective products.

To file a lawsuit you may need a probate representative which is a term that includes both "executors" and "administrators." An "executor" is the person designated in a Will to administer a decedent's estate. An "administrator" is appointed to administer an estate either when there is no Will, when an executor has not been named in a Will, or when the person named in the Will as executor is unable to act. A probate representative must be appointed by a probate judge in a proceeding filed in the appropriate probate court.

A survival cause of action can be filed by the estate's court appointed personal representative. A survival cause of action can only be brought if the decedent did not immediately die from his injuries. However, if the deceased lived for even a short time between the accident and his or her death, then a survival cause of action may be appropriate. Under California Code of Civil Procedure §377.30, a cause of action that survives the death of a person passes to the decedent's successor in interest and can be enforced by the decedent's personal representative.

Damages recoverable under the survival cause of action statute include "the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement." Essentially, the survival statute allows one to "step into the shoes" of the deceased and recover the damages the deceased person would have been entitled to had they lived, including medical expenses and lost wages, as well as penalties, punitive or exemplary damages.

More specifically, the decedent's survival action damages are limited to "the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement." (Emphasis added). Therefore, punitive damage claims can survive the death of the injured party. However, that is true only if the decedent survived the accident, however briefly, or if property of the decedent was damaged or lost before death.


Under California Welfare and Institutions Code §15657, decedent's pre-death pain and suffering are expressly recoverable in a survivor action under the Elder Abuse Act if certain conditions are met. Specifically, the statute provides for heightened remedies, including recovery for the decedent's pre-death pain, suffering, and disfigurement, to a successor in interest to a decedent's cause of action "[w]here it is proven by clear and convincing evidence that a defendant is liable for physical abuse as defined in Section 15610.63, or neglect as defined in Section 15610.57, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse . . . in addition to all other remedies provided by law." (See California Welfare and Institutions Code §15657, subds. (a) & (b).) But it is also expressly subject to the dollar amount limitation of California Civil Code § 3333.2 - a maximum of $250,000 for noneconomic losses in an action for injury against a health care provider based on professional negligence.

Thus, under the Elder Abuse Act, where neglect or abuse of an elder or dependent adult is reckless or done with oppression, fraud, or malice such that the statutory prerequisites are satisfied, damages for the victim's pre-death pain, suffering, or disfigurement are recoverable in a survivor action pursued by the victim's personal representative notwithstanding the usual prohibition on such recovery under Code of Civil Procedure section 377.34. This statutory rule of law does not affect or expand the type of damages recoverable by a decedent's heir in a wrongful death action in which that plaintiff seeks compensation for his or her own injuries, which are separate and distinct from the decedent's pre-death injuries for which compensation is sought in a survivor action.


While no amount of money will bring back a loved one, strong and competent legal representation may help to offer closure and to ease the financial stress involved after such a loss. To speak with me during a free initial consultation, call me, William K. Sweeney, toll free at 800-575-9610 or locally at 760-989-4820. You can also send me an email by completing an online contact form. As a probate and wrongful death attorney, I represent clients throughout the state of California and others who reside outside the state who require counsel for interests in California.

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