New California Law Allows for Pain and Suffering Damages in Survival Actions

In California, when a person is killed as a result of someone else’s wrongful act, their legal rights do not die with them. A personal representative can bring a lawsuit in the victim’s behalf, known as a survival action, pursuing the damages the victim would have been entitled to recover had he or she survived. A recent change in state law has expanded the types of compensation available in survival actions, allowing — for the first time — recovery of damages for the decedent’s pain and suffering prior to death.

A survival action is intended to hold the wrong-doing party accountable for the decedent’s personal losses. As a decedent cannot directly collect, compensation is paid to the decedent’s estate or legal representative. Under prior California law, there was no recovery for the pain and suffering the decedent may have suffered before their untimely death. Under the revised law, a survival action filed after January 1, 2022 permits such recoveries. This change in the law creates a greater incentive for filing survival actions, since many victims often suffer considerable agony before they die. 

Certain relatives of a person who dies due to someone else’s negligence or intentional actions can also bring a wrongful death lawsuit to recover compensation for their own losses resulting from the death. Immediate family members can claim economic damages to replace the amount of money the decedent would likely have contributed to the family for financial support had he or she not been killed. The family can also claim non-economic damages, which often includes loss of companionship, loss of emotional support and mental anguish. 

The ability to recover damages for pain and suffering in survival actions means that wrongful death and survival actions are more likely to be brought in parallel in order to achieve the highest settlements or court awards possible. The decedent’s personal representative bringing the lawsuit is often the estate executor or administrator but can also be a close family member. In either case, the damages recovered in a survival action become the property of the decedent’s estate and are distributed to beneficiaries or heirs according to the decedent’s will or by operation of law.

Survival actions and wrongful death lawsuits are often complex and contentious, since insurance companies fight hard to limit their payouts. Patterson Law in Santa Barbara is experienced in pursuing damages in these cases. If you have lost a family member due to someone else’s negligence, recklessness or intentional act, please feel free to contact us online or call 888-479-4589 for an initial consultation.