If you have a loved one who has passed away in Las Vegas, Nevada, you may be wondering about the difference between a wrongful death vs. survival action. There is one major difference between the two types of claims. Wrongful death claims are filed for the family members of the deceased person. Survival actions are claims that the deceased person would have been able to bring had she or he survived. Aside from this, there are differences in how the compensation is paid out, the types of damages that are awarded, and the statute of limitations for each type of claim.
If you have lost a loved one, the loss can be an emotional and difficult experience. When the death was caused by someone else’s negligence, the loss can be more difficult to weather knowing that his or her death was preventable. If your loved one was the primary financial contributor in your family, aside from the emotional hardship, you may be facing extra financial difficulties. You may also be facing the financial pressure of having to cover funeral and burial expenses.
Whether it be a motor vehicle accident, premises liability, or medical malpractice, if your loved one passed away due to the negligence of another person, you may be considering legal action to seek compensation from the person responsible. There are two types of claims that you might pursue. Both wrongful death and survival actions are forms of personal injury claims that can be brought against the negligent or reckless person responsible for the death of your loved one. They are aimed at compensating the victim, as well as family members, for economic and non-economic damages suffered due to your loved one’s passing.
What Is a Wrongful Death Claim?
A wrongful death claim can be filed when a family member is killed due to the negligence, recklessness, or intentional act of another person. It is filed by family members or a personal representative of the deceased person’s estate. These claims seek compensation for losses that the survivors incurred as a result of the death, including lost wages, loss of companionship, or funeral expenses. To have wrongful death claims explained, you will need to understand the elements of a wrongful death lawsuit.
Elements of a Wrongful Death Claim
To make a successful wrongful death case, the person bringing the claim must prove certain elements:
The Death of a Human
Wrongful death actions are brought about because of a person’s death. Thus, if there is no death of another person, there can be no wrongful death, and therefore, no claim.
Negligence or Wrongful Act of Another Person
To act negligently, the at-fault person must have owed a duty of care to the deceased person. For example, motorists owe a duty to other drivers on the road to drive safely and obey traffic laws. Doctors and medical health providers have a duty to provide proper healthcare to their patients.
Negligence is the failure to act with reasonable care to prevent causing harm to other people. Plaintiffs may need to demonstrate what a reasonable standard of care would have been in the specific situation.
The death must be attributable to a negligent or wrongful act. If the death was due to some other cause, the person who was negligent or at fault cannot be held liable for a death that he or she did not cause. You will need to prove a link between the conduct of the at-fault person and the death of your loved one. How foreseeable the death was due to negligence or wrongful act may play a role in determining causation.
You must suffer some form of loss because of the death of your loved one. These damages can be economic damages, which have a monetary value. They can also be non-economic damages, such as loss of companionship, emotional anguish, or grief and sorrow.
Common Causes of Wrongful Deaths
All wrongful death lawsuits require the same four elements to be proven. However, there are varying types of wrongful death lawsuits.
Some of the most common causes of wrongful deaths include birth injuries and medical malpractice, as well as motor vehicle, motorcycle, or commercial truck accidents. Additionally, other wrongful deaths are caused by occupational hazards or exposure, defective products, or accidents on unsafe or hazardous premises. Supervised activities including day-care, field trips, or adult care, abuse and neglect in any form, or criminal actions including stabbings, shootings, or violence can also result in wrongful death lawsuits.
Who Can File a Wrongful Death Lawsuit?
Your state’s laws will determine who can file a wrongful death lawsuit. In Las Vegas, Nevada, the surviving spouse, domestic partner, or the deceased’s children can file a wrongful death lawsuit. If there is no surviving spouse or children, the parents can bring a lawsuit. Nevada also permits people who were dependent on the deceased person, such as stepchildren, to file a wrongful death lawsuit. The lawsuit can also be filed by a personal representative of the deceased’s estate. A wrongful death lawyer will assist in filing the lawsuit.
Damages in a Wrongful Death Claim
There are two main categories of damages claimable in a wrongful death action. These are economic and non-economic.
Economic damages are quantifiable. They are based on the monetary losses you have incurred due to the death of your loved one. These damages are typically awarded to the deceased person’s beneficiaries. These are the surviving spouse, children, or other relatives who were financially supported by the deceased person, for the period of time that they would have been financially supported. They may include:
- Medical expenses incurred by the fatal injury, illness, or accident. These are expenses for care, treatment, and hospitalization.
- Expenses related to the funeral and burial.
- Compensation for lost income, or loss of the future earnings of the deceased person.
- Loss of benefits. These include pension or medical insurance.
- Loss of inheritance.
- The estimated worth of the household services that the deceased would have contributed, including tasks like cleaning and home maintenance.
To be successful in claiming economic damages for loss of financial support, the family members must show that the deceased person supported them financially, as well as the amount of financial support that they received.
Generally, children will be entitled to such damages until the age of 18-years-old, or through college, if they can show that the deceased person would have contributed to their college education. A widow usually receives compensation until the presumed retirement age of the deceased, usually 65 years old. A widower, parents, or other relatives may be entitled to compensation for loss of support if they can prove that they were receiving financial support from the deceased person.
Non-economic damages are damages that family members may claim for losses that do not have a monetary amount. A spouse may be able to claim damages for loss of consortium, and loss of the deceased’s household services. Children may be able to claim damages for loss of guidance and nurturing. Family members can also claim mental and emotional anguish.
Statute of Limitations for Wrongful Death Actions
In Nevada, a time limit is imposed on how long a person has to bring a lawsuit. This is known as the statute of limitations. A wrongful death lawsuit must be filed in Nevada within two years from the date of death of the deceased person. If the lawsuit is not filed within this two-year period, the family, or personal representative of the deceased estate may lose the right to bring the lawsuit.
What Is a Survival Action in Nevada?
A survival action is brought on behalf of a deceased person when he or she dies before he or she can finish, or file, a personal injury lawsuit. It is designed to compensate the estate for losses that the deceased person suffered before his or her death. In other words, it is the same as a personal injury lawsuit that the deceased person would have filed had he or she survived and is fought on behalf of the deceased person after his or her death.
Damages in a Las Vegas, Nevada Survival Action
The executor or personal representative of the deceased person’s estate may claim all damages or losses on behalf of the deceased person. These losses and damages are what the deceased person incurred before his or her death. They include the same damages that a person would claim in a personal injury lawsuit. Thus, both economic and non-economic damages can be claimed.
Economic damages in a survival action lawsuit include medical expenses related to the accident that were incurred before the death. They also include lost wages from the injury up until the death, attorneys’ fees, and any other monetary losses that the deceased person incurred before his or her death.
Non-economic damages may also be claimed. These include pain, suffering, and mental anguish that the deceased person experienced between the accident and his or her death. However, these damages can be difficult to calculate or prove, because the deceased person is unable to provide testimony and evidence.
The longer the period between the accident and the death of the person, the greater the damages claimed are likely to be. If a person dies immediately in an accident, they are less likely to have incurred expenses for medical treatment, lost wages, or other such monetary losses. It will likely also be difficult to prove non-economic damages, such as pain and suffering.
Statute of Limitations for Survival Actions
In Nevada, the statute of limitations for a survival action is two years from the time of the accident. Therefore, if a person gets injured in a car accident, and passes away six months later, the person’s estate has one and a half years after the death to bring the lawsuit, since the time limit for the statute of limitations had already started running when the accident happened.
There is an exception to the two-year time limit. If the deceased person dies less than a year before the two-year time limit expires, then the executor of the estate has a full year to file the survival action lawsuit.
For example, a person may receive injuries in a car accident, for which he or she would file a personal injury lawsuit against the negligent driver. The person then passes away one and a half years later from his or her injuries. The executor of the deceased person’s estate then has a year from the time of the deceased person’s death to bring the lawsuit, since he or she passed away within a year of the time that the statute of limitations was up. Therefore, the executor has two and a half years from the time of the accident to file the lawsuit.
Who Is Eligible to Bring a Survival Action?
A survival action is brought by the executor or personal representative of the deceased person’s estate. When a person dies, his or her estate becomes the plaintiff in any ongoing lawsuits, or any lawsuits that he or she would file.
If the deceased person had a will, a person will usually be nominated as the personal representative of the estate in the will. In this case, the nominated person will submit the original will to the clerk of the district court, filing a petition for appointment as a personal representative, and will then be appointed.
If there was no will, a person seeking an appointment will file a petition requesting to be appointed as the personal representative of the estate. In Nevada, personal representatives are appointed in a certain order of priority. The order is first a surviving spouse, then children, a parent, sibling, grandchild, and another person entitled to a share of the estate. If there are none of these, it can be a public administrator, creditor of the deceased person, kindred within a fourth degree of consanguinity, or any other legally qualified person.
Once the lawsuit has been resolved, any damages will go into the deceased person’s estate and will be distributed to the heirs.
Differences Between Wrongful Death and Survival Action
While survival actions may seem similar to wrongful death lawsuits, there are some key differences.
A survival action is brought on behalf of the deceased person. Therefore, the estate is the plaintiff, and the executor, or representative of the estate, is bringing the lawsuit on behalf of the deceased person.
In a wrongful death lawsuit, the family members or financial dependents are the ones who suffered the loss for which they are claiming and are therefore usually the plaintiffs.
In a survival action, the damages claimed are financial losses that the deceased person suffered before his or her death. Therefore, they are monetary losses for medical bills, lost wages, property damage, as well as any other financial damages he or she may have suffered. The non-monetary losses are for the pain and suffering that the deceased person suffered.
Wrongful death lawsuits claim damages that people other than the deceased person suffered. They are a different set of losses incurred. Monetary damages are for loss of financial support, loss of benefits such as medical insurance, and funeral and burial expenses. Non-economic damages are emotional suffering that family members suffer, including loss of consortium, loss of companionship, or mental and emotional anguish.
How Damages Are Distributed
Due to the nature of a survival action, the plaintiff is the deceased person’s estate. Therefore, any damages awarded are put into the estate. Once the estate gets distributed, the beneficiaries of the estate receive their portion of the damages as they are distributed. Therefore, the damages are split up evenly according to how the estate gets distributed.
In a wrongful death lawsuit, the plaintiffs are family members or financial dependents, and any damages awarded are given directly to the person filing the wrongful death lawsuit. This person then receives the damages, without them getting distributed amongst the beneficiaries of the estate.
Statutes of Limitations
For both lawsuits, the statute of limitations is two years in Las Vegas, Nevada. However, it begins running at different times. In a wrongful death lawsuit, the statute of limitations begins running from the time of death. In a survival action, the statute of limitations begins running from the time of the accident or injury. This can be the same as the time of death, if the person dies at the time of the accident, or different if there is a time period between the date of the accident and the date of death.
A survival action also has the exception that an extra year is granted if the deceased person dies within one year of the deadline for the statute of limitations running out. Thus, the statute of limitations for a survival action can be up to three years, depending on the date of the death.