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Survival Actions

Casey Woodruff

statement of damagesIllinois Wrongful Death Attorney

Two types of lawsuit may be filed in Illinois when a family member dies because of another’s negligence or wrongful conduct: wrongful death claims and survival actions. Wrongful death claims compensate the family for the losses they suffer because of the death, while a survival action is the lawsuit that the victim would have been able to bring, had he or she survived the accident. If you wish to file a wrongful death or survival claim, an attorney’s advice can help.

Wrongful Death Claims

In a wrongful death lawsuit, an accident victim’s surviving spouse, child, or other family member can sue to recover damages for the losses they suffered because of the untimely death. These damages may include claims for:

  • Funeral expenses;
  • Loss of support, comfort, and companionship;
  • Loss of financial support;
  • Loss of the enjoyment of sexual relations; or
  • Loss of training and guidance.

Survival Actions

Traditionally, a person’s right to sue for personal injury ended at death. But it would be unfair for a culpable party to avoid the payment of damages simply because the victim died. The Illinois Survival Act preserves the deceased person’s cause of action for personal injury. It allows a decedent’s estate to become involved in any cause of action that the decedent had at the time of death, and means that the victim’s family is not left with medical expenses that they cannot afford.

Who Files

To file a survival action, the decedent’s estate must be opened and a personal representative appointed to administer the estate. The personal representative files the survival action, rather than the family, as in a wrongful death claim. In pursuing the lawsuit, the personal representative stands in the shoes of the decedent, acting in a representative capacity to make decisions as the decedent would have done.

Available Damages

In a survival action, the decedent’s estate may collect compensatory damages for the harms that the deceased party suffered, as opposed to wrongful death damages, which compensate the victim’s family for their losses. Compensatory damages in a survival action can cover both injuries to the person and injuries to property, which may include:

  • Medical expenses;
  • Property damage;
  • Lost wages;
  • Physical disability; and
  • Intangible losses, such as pain and suffering.

Damages are available for harm sustained between the time of the accident and the time of death. Pain and suffering damages are available even if the decedent only suffered for a short time before death, though the amount will be reduced. Emotional distress and punitive damages are generally not recoverable in a survival action.

Any amounts recovered in a survival lawsuit are paid to the estate of the deceased. They will then be distributed according to the will or under the rules of intestacy if the deceased left no will.

Losing a loved one to an accident is a tragic experience. Worrying about money because of the loved one’s death only makes your loss harder. If you have lost a family member because of another’s negligence, please contact a wrongful death attorney at Woodruff Johnson & Evans to schedule a free initial consultation in our offices in Aurora, Chicago, or Champaign.

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