Wrongful Death: South Carolina Survival Actions

December 27, 2013

We’ve spent some time now discussing various facets of South Carolina’s wrongful death laws and now we’ll turn to a different, though related issue: survival actions. Wrongful death claims are filed by the family members of the deceased and exist to compensate them for their loss of a loved one. Survival actions are different in that they are filed by the estate of the deceased and exist to compensate the deceased for the pain he or she suffered prior to death.

What is a survival action?

Unlike wrongful death claims, which are filed by family members, survival actions are filed on behalf of the recently deceased. South Carolina survival actions (which are discussed in Section 15-5-90 of South Carolina Code) take place when someone has been seriously injured due to another person’s negligent or reckless conduct, but that person does not die from his or her injuries right away. The survival action exists so that the deceased person’s estate can sue to recover medical expenses incurred during the time between the accident and the person’s death, as well as to compensate the person for pain and suffering.

Who can bring a survival action?

Survival actions in South Carolina must be brought by the personal representative of the deceased person’s estate and are typically filed alongside a wrongful death claim. The suit will be brought for the benefit of the estate of the recently deceased individual and any money collected as a result will be distributed according to South Carolina’s intestacy laws.

What damages can be recovered in a South Carolina survival action?

Survival actions exist to compensate the recently deceased person’s estate for the harm he or she suffered. This means that survival actions can include both economic and non-economic damages. Economic losses such as medical bills, lost wages and other expenses can be compensated as well as non-economic categories of harm such as pain and suffering and loss of enjoyment of life.

However, it’s important to note that because survival actions are brought on behalf of the recently deceased person and not on behalf of that person’s family, there can be no recovery for damages that were suffered after the person’s death. Instead, any expenses or harms suffered post-death must be handled in a wrongful death lawsuit.

What are the challenges of a survival action?

Though survival actions are not uncommon, they can be difficult given the nature of the claim. In these cases, you must prove that the recently deceased person was conscious and experienced pain and suffering before you can collect damages. In cases where a person dies almost immediately following an accident it can be very difficult to successfully use a survival action to recover damages. More clear-cut cases include those where it can be shown that the person remained alive and suffered following the initial, and ultimately fatal injury.

 

Charleston wrongful death lawyer David Aylor understands how the sudden loss of a loved one can lead to emotional as well as financial devastation. If a family member was killed due to the negligent actions of others, it may be helpful to reach out to an experienced lawyer who can guide you through the complexities of a South Carolina wrongful death claim. For more information, contact our office at 843-310-4900.

Survival Actions in Wrongful Death cases
David talks about survival actions in wrongful death cases.

 

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