Survival

When a person dies, a lawsuit that they could have filed does not disappear just because the person dies. Instead, the deceased’s lawsuit can be brought after death by the deceased’s personal representative or successor in interest. The survival statute provides as follows: “Except as otherwise provided by statute, a cause of action … is not lost by reason of the person’s death….” (Code of Civil Procedure section 377.20, subdivision (a).)

The “personal representative” or “successor in interest” can bring the survival lawsuit on behalf of the deceased. Because these are legal terms that refer to specific people, not just anyone can bring a survival action on behalf of the deceased.

Example 1: Following a motorcycle accident caused by another person’s negligent driving, Tim suffered an amputation injury. Despite being in the hospital for two weeks, doctors were unable to save him, and he passed away. Before his death, Tim had a personal injury case against the negligent driver, encompassing the immense pain and suffering caused by his amputation injury. The right to pursue this survival action for his pre-death pain and suffering now persists after his passing, allowing Tim’s heirs or his appointed personal representative to bring forth the legal action.

Example 2: During his arrest, a police officer mistakenly shot Jon, believing he might be armed when he put his hands in his pockets. Despite Jon’s lack of resistance during the arrest, the officer perceived a threat. Jon was rushed to the hospital by paramedics but succumbed to his injuries a week later. Following his death, Jon’s heirs or appointed personal representative can initiate a survival action on his behalf. This action encompasses seeking redress for all the pain and suffering Jon experienced before his passing, as this claim survives beyond his death.

Example 3: A massive fire, caused by a faulty portable heater, broke out while Kristen, a young child, was asleep in her apartment bedroom. (**Note: According to Stanford Medicine, fires kill about 500 children under 14 each year.) Suffering severe burn and smoke inhalation injuries, she tragically passed away in the hospital a few days later. At the time of her death, she had a potential personal injury claim against the manufacturer, distributor, or retailer of the defective heater. Her personal injury lawsuit survives her death, allowing her estate or representatives to bring forth a survival action after her passing. This action seeks all her pre-death damages, including pain and suffering, caused by the faulty heater.

A survival action is different from a wrongful death claim because a wrongful death claim is for damages to the heirs whereas a survival claim is for damages to the deceased.

The damages that are recoverable in a survival action 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. This does include pre-death pain, suffering, and disfigurement. (Code of Civil Procedure section 377.34, subdivisions (a) & (b).)

A survival action must be brought within the applicable statute of limitations for the underlying claim. So, in the example above when Tim was injured in a motorcycle accident and later passed, the statute of limitations for his personal injury claim would be two years if a private party was at fault or possibly as soon as six months if a government employee (e.g., an MTA bus driver) caused his death.

Prior to 2022, the survival statute in California did not allow recovery of pre-death pain, suffering, or disfigurement in a survival action. The language of the statute prior to 2022 read as follows: “In an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable 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.” (Code of Civil Procedure section 377.34, subdivision (a).)

As of January 1, 2022, a revised version of the survival statute came into effect, permitting damages for pain, suffering, and disfigurement. This amendment allows for these claims within a designated period, specifically between January 1, 2022, and December 31, 2025. The modification is outlined within subdivision (b) of section 377.34 and states: “Notwithstanding subdivision (a), in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding … was filed on or after January 1, 2022, and before January 1, 2026.” (Code of Civil Procedure section 377.34, subdivision (b).)

This change in the law brings California in line with the majority of states that allow for pre-death pain, suffering and disfigurement when a person’s death is caused by the negligent or wrongful act of another.