Personal injury claims allow accident victims to file a claim and receive compensation for their medical expenses, lost income, and other losses. Tragically, accidents are sometimes so severe that victims do not survive them. In these cases, loved ones can file a wrongful death claim. Although many people have heard of wrongful death claims, there is another type of action loved ones can take. These are known as survival actions. While these two types of cases focus on the same death, they are very different from each other. Below, one of our Chicago wrongful death lawyers explains in further detail.
What are Cases of Wrongful Death and Survival Actions?
The Wrongful Death Act in Illinois defines a wrongful death as any death caused by someone else’s negligent act. The action resulting in death does not always have to be careless in nature, though. For example, if someone intentionally killed another person, they would face criminal charges, but may also have a wrongful death lawsuit filed against them. Wrongful death can happen in a number of ways, including:
- Car accidents
- Motorcycle accidents
- Nursing home abuse
- Medical malpractice
- Pedestrian accidents
- Truck accidents
- Police misconduct
A successful wrongful death claim provides compensation to loved ones of the deceased for their losses. These damages may include loss of companionship, income, emotional suffering, and consortium.
In addition to the Wrongful Death Act, Illinois also has a Survival Act. Under this Act, a survival action can also be filed after someone has been killed due to another person’s wrongdoing, but these differ from wrongful death claims. However, loved ones do not file these claims. Instead, they are filed by the estate of the decedent. If a personal representative or executor was named in the will of the deceased, they would file a survival action.
A survival action is appropriate when the deceased could have filed a claim for compensation if they had survived the accident. If the deceased had already initiated legal action, such as a personal injury claim, before they passed away, a survival action would allow the case to continue. Common damages awarded in survival actions include medical expenses, lost wages, and the cost of repairing or replacing damaged property.
Beneficiaries Receive Damages from Wrongful Death Claims and Survival Actions
It is true that wrongful death claims are meant to compensate loved ones, such as surviving spouses and children, for the losses they sustained as a result of a death caused by negligence. However, the fact that damages awarded in survival actions are distributed to the estate is really just a legal technicality.
This is because beneficiaries of the estate are often the same individuals as the loved ones who can file a wrongful death claim. When the estate is administered in probate court all of the assets in the estate, including damages from a survival action, will be distributed to the beneficiaries. It is always important for loved ones to speak to a Chicago wrongful death lawyer to determine if a survival action is also applicable.
Proving Wrongful Death Claims and Survival Actions
Another important difference between wrongful death claims and survival actions is that the elements of proof differ, as well. As in all personal injury cases, you must prove certain aspects of the case when filing both a wrongful death claim and a survival action.
The elements of proof in wrongful death claims include:
- Duty of care: Everyone has a duty of care to act in a manner that prevents others from being hurt and suffering harm. When filing a wrongful death claim, you must establish that the defendant owed the deceased a duty of care. For example, if your loved one was killed in a car accident, it may be fairly easy to show that the other motorist had a duty to follow traffic law, which would have kept them safe.
- Breach of duty: After establishing a duty of care, you must then show that the defendant breached their duty of care. This is essentially proving the negligent act that caused the death. Staying with the above example, if there is video footage showing that the defendant ran a stop sign, that could prove a breach of duty of care.
- Causation: A negligent act on its own is not enough to file a wrongful death claim, or even a personal injury claim, if it did not result in harm. You must establish a direct link between the negligent act and how it caused the accident resulting in death.
- Damages: The purpose of a wronged death claim is for the loved ones to obtain compensation for their losses. As such, if you did not suffer any damages as a result of the death, you cannot file a claim.
The elements you must prove in a survival action are also slightly different. They include:
- You are the personal representative or executor for the deceased
- The deceased has a legal claim
- The death was caused by the negligent actions of the defendant
Time Limits on Wrongful Death Claims and Survival Actions
Lastly, the statute of limitations, or time limit, on wrongful death claims and survival actions are both two years. However, the clock on the statute of limitations starts at different times. In wrongful death claims, loved ones have two years from the date of the death to file a claim. In survival actions, the estate has two years from the date of the accident resulting in death to file their legal action. The difference in the statute of limitations becomes particularly important when the deceased survived for some time after an accident before succumbing to their injuries.
Our Wrongful Death Lawyers in Chicago Can Provide the Legal Advice You Need
Losing a loved one is incredibly difficult and as you grieve, you will need sound legal advice to obtain the full damages you and your loved one’s estate deserves. At Kennedy Watkins, LLC, our Chicago wrongful death lawyers can provide it so you obtain the full settlement you deserve and that can help you move forward with your life. Call us today at (312) 448-8181 or contact us online to schedule a free consultation and to learn more about your legal options.