In California, a survival action is the lawsuit that the deceased person would have been able to bring if they had lived. A wrongful death action would be a claim for compensation for the harms that the family of the deceased has suffered.
If you are a family member, you would be filing a wrongful death claim because you’ve suffered the loss of your family member.
What Happens If An Injured Person Dies During A Pending Personal Injury Claim? Does It Automatically Get Converted Into A Wrongful Death Action?
It would be converted into a wrongful death claim if the cause of the death could be shown to be what caused the injury.
For example, if your neck is broken as a result of an automobile accident and you go in for surgery but die on the operating table, it would be a wrongful death claim. It would convert into a wrongful death claim because you were having a surgery as a result of the injuries from the accident.
If the death was unrelated to the automobile accident, for example, a heart attack six months after the accident, it would not convert into a wrongful death claim.
What Are The Common Types Of Wrongful Death That Lead To A Suit?
The top five most common causes for a wrongful death that lead to a suit include auto accidents, medical malpractice, workplace accidents, using defective products, pedestrian accidents.
The vast majority of auto accident fatalities are the result of negligence. This can include speeding, reckless driving, not paying attention, or driving under the influence. If any of those apply then the negligent driver would be liable for the deaths of anyone involved in the accident.
In cases of medical malpractice, a misdiagnosis of a condition, failure to diagnose a condition or something goes wrong during surgery where the doctor is at fault can result in a wrongful death suit.
If you are working in an industry with hazardous products or dangerous machines, accidents at work that cause wrongful death can lead to a suit if the employer is at fault.
If somebody dies because of a defective product, the manufacturer of the product is held liable. One of the reasons there is so much product testing and an increased amount of time before products come to the market is that a lot of these companies test them to make sure that they are safe. The most common wrongful death cases with products are pharmaceutical products, toxic foods, unsafe products for children, or defective automobiles.
The last wrongful death category that is most common is pedestrian accidents and there are more fatalities because being on a motorcycle or bicycle, you don’t have any protection. There is no airbag, a seatbelt or a road cage to protect you and cars weigh 2000, 3000, 4000 lbs. Hitting someone that weighs 150 – 200 lbs. never ends well for the pedestrian.
What Elements Need To Be Proven In A Wrongful Death Claim In California? How Is Liability Established In Wrongful Death Actions?
In terms of elements, negligence is the primary one. You must show that they had a duty, that you owed a duty to somebody to be careful or act as a reasonable person would. You must demonstrate that somebody breached that duty.
In this situation, the defendant owed a duty of reasonable care to the deceased, the breach of that duty is why the person died. Next, you have to prove that the breach of duty is what caused the death of the person. Finally, you have to prove damages. Medical expenses you owe, financial losses, funeral costs, burial costs, loss of income, pain and suffering are examples you can use.
Is There A Law That Covers Who Can Recover For A Wrongful Death Suit In California?
In California, the family members or an estate representative of the victim can file a claim for a wrongful death. If you are not related to the party, like a friend, usually you are unable to bring a wrongful death claim.
Can Punitive Damages Be Recovered In A Wrongful Death Claim In California?
No, unless you can prove that the death of a loved one was caused by some form of felony homicide.
For more information on Survival Action Vs. Wrongful Death Claim, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (562) 600-0807 today.