Survival actions

Survival actions are often brought along with wrongful death actions. A personal injury action does not abate, or end, because of the death of the injured party or the person causing the injury. When the injured party dies, the action survives and is then brought in favor of the deceased’s heirs, estate and legal representative. Just as with any other claim, a plaintiff bringing a survival action on behalf of a decedent must have both legal capacity to sue and standing.

An heir has capacity to bring a survival action when the decedent’s personal representative either will not or cannot bring the suit, or when the representative’s interests are different or antagonistic to that of the estate.

There is not a survival action for the death of a fetus. A child must be born alive for there to be a survival action. However, parents have various remedies under the Wrongful Death Act for the death of a fetus. Additionally, damages relating to the mother’s mental anguish because of her negligent treatment may be recovered.

Under the survival statute, the damages recoverable are limited to the damages suffered by the decedent prior to his death. Accordingly, the legal representatives or heirs of an estate may recover for the physical pain, suffering, and property damage suffered by the deceased prior to his death.

Circumstantial evidence may be used to establish the existence of conscious pain and suffering by the deceased. Moreover, pain and suffering may be presumed or inferred as a result of severe injuries. There needs to be some degree of consciousness to support an award of pain and suffering. However, the consciousness does not have to be complete. In one case, five seconds of conscious pain suffered by a minor who was electrocuted was enough to support a pain and suffering award.

The judge or jury may award money damages for the decedent’s mental suffering, as well as for the physical pain and suffering.

The Nelson law firm represents clients in Corpus Christi, Brownsville, Houston, Galveston, Laredo, and all of Texas. Contact South Texas wrongful death lawyer Scott Nelson if you need help with a wrongful death lawsuit.