Wrongful Death and Survivor Actions

Wrongful Death and Survivor Actions

When someone dies as the result of another person’s negligence, the law has any number of remedies in place to punish the negligent party. When someone is found guilty of manslaughter, he or she has committed a negligent act whereby someone died as a result. The defendant did not, however, have the necessary culpable mental state to charge him or her with murder, which requires specific intent to engage in the act that resulted in the death of another. Criminal law exists, among other reasons, to ensure that the wrongdoers in society are punished and to provide a strong disincentive to others who would think about doing something similar.


The civil tort system, on the other hand, exists to provide a system for the compensation for the losses to victims, without the intervention and involvement of the state. The only state involvement in the civil tort is the use of the court system. Under the umbrella of the civil tort system, there are two general causes of action that are implicated in any case involving a person’s death. They are a wrongful death suit and a survival action. The survival action is so named because it recognizes that the cause of action survives the death of the deceased, by and through the deceased’s estate, to seek compensation for the pain and suffering as well as any other material issues involved in the death of the deceased. A wrongful death action, on the other hand, is initiated and maintained by the living family members who relied on the deceased for support.


The wrongful death benefits the survivors while the survival action benefits the estate. In essence, there are different plaintiffs in each. These distinctions matter, insofar as different rights and remedies are available under each. These rights and remedies also matter because they in turn affect certain public entitlement programs, such as social security survivor benefits. Furthermore, there are different statutes of limitations for each case. As to wrongful death actions, the plaintiffs must file suit within two years of the date that the deceased passed away. There are some exceptions to this rule. With respect to the survival action, the plaintiff has three years to file suit against the alleged negligent party. If there are criminal proceedings, the estate representative has at least one year from the date of those proceedings to file suit, even if three years has passed from the date of death. This is beneficial to the estate representative because they can then use the criminal judgment of conviction as proof of a number of issues in the survival action. If the only beneficiary of the estate is a minor, the statute of limitations tolls or freezes until the child turns 18 years old or a guardian is appointed, whichever occurs first.


The damages contemplated in a wrongful death proceeding are dependent upon the Plaintiff’s relationship to the deceased. Loss of companionship, as well as any money that the deceased would have contributed to the Plaintiff’s life, such as providing money for tuition, lost inheritance and even incidental costs to make up for any house work that the deceased may have performed. The survival action allows the estate to recover for lost wages, any suffering and pain that the deceased endured prior to passing, medical bills incurred as a result of the negligence of the defendant. Even funeral costs and other incidental costs. All of these damages are due to the defendant’s estate, to be divided up and paid out according to the deceased’s will or the state’s intestacy statute.


If a loved one died as a result of the negligence of another, you must speak with an experienced attorney who understands the law and knows how delicate these cases can be. The attorneys at Napoli, Shkolnik, PLLC have the experience and compassion you need and deserve. You can our online contact information form and someone will reach out to you about your case or you can call us directly at 212-397-1000.