A new California law allows you to recover damages for your own pain and suffering if you’re the survivor of a person who died as a result of someone’s negligence.
There are 2 types of wrongful death lawsuits available in California:
- A wrongful death action compensates the surviving family members for financial support, household contributions, funeral expenses, emotional distress, and loss of companionship or consortium. (California Code of Civil Procedure §377.60)
- A survival action pays for the damages suffered by the victim that were the result of the defendant’s negligence. The medical costs, loss of property, and other costs that the deceased person suffered between the time of the accident and their time of death can be claimed through a survival action. In other words, any personal injury claim the deceased person could’ve made in a lawsuit if they’d lived would be part of a survival action following their death. (California Code of Civil Procedure §377.30)
If a person (or entity) behaves in a way that they could reasonably have foreseen (anticipated) could cause harm or injury to someone else, they can be found negligent if that person becomes injured as a result.
This becomes important if you’re in a car accident, have a slip and fall accident, or similar instances where you might have been injured by someone else’s fault. Those are the types of situations where a person can file a personal injury lawsuit. But if the injury was so severe that the person dies, a survival action is the legal method by which their designated family member may pursue those claims on their behalf.
A new California law that went into effect on January 1, 2022 says that damages for pain and suffering or disfigurement may be included in a survival action for lawsuits filed after that date (and some from before that date), extending to 2026 (and possibly permanently).
In other words, a surviving person may sue for the pain, suffering, or disfigurement a deceased person suffered in the time between the accident and their death.
A survival action may only be filed if there was a period of time between the accident and the person’s death. In other words, if the person died instantly in an accident, you’re not entitled to file a survival action on their behalf.
However, if they were in an accident and lived for a period of time (hours, days, weeks, or even years) and eventually died from injuries resulting from the accident, the court would look at the extent of their costs and the period of time with which they lived with the injuries.
Under the previous version of the law, a plaintiff (the survivor) could receive damages for their own emotional suffering as part of a wrongful death claim, but they could not receive damages to be compensated for the pain and suffering of the deceased individual. The new law changes that.
Who can recover damages for another person’s death
A survival cause of action may be filed by the deceased person’s:
Usually, the personal representative is the executor of the estate, who was selected prior to the person’s death. If there is no personal representative, the courts can appoint one from among the deceased individual’s friends or family members.
There are certain individuals who are not permitted to serve as a personal representative, including:
- A minor
- A person who is subject to a conservatorship or incapable of performing the duties of a personal representative
- A surviving business partner of the deceased, if an interested party objects
- A non-resident of the U.S.
Successor in interest
If there is no personal representative, a successor in interest can bring a claim. This person is the beneficiary of the deceased person’s estate.
How much can you recover for pain and suffering in a survival action?
That will depend on a number of factors.
We don’t really know yet how these damages might be calculated since the law is too new to have completed cases involving the new provision.
Most likely, it will hinge on the length of time the person survived in an injured state before they died, and the amount of pain and suffering the deceased person endured. For instance, if they were in a coma — medically induced or otherwise — and assumed not to have felt pain, they might receive less in compensation for pain and suffering than if they were conscious and experiencing extreme physical or emotional disturbance.
The court would likely evaluate pain and suffering in a survival action the same way as it would in a personal injury lawsuit by a plaintiff who is still alive.
There are several factors involved in determining whether a personal injury settlement or award can include pain and suffering damages. They include:
- The amount of the plaintiff’s economic losses
- Severity of the physical injury
- The intent or recklessness of the defendant’s actions
- The strength of the evidence
How to prove pain and suffering of someone who is deceased
If you’re considering a lawsuit that includes damages for pain and suffering of someone who is no longer here to testify on their own behalf, your lawyer can help you to provide the court with evidence that includes:
- Medical records, including doctors’ and therapists’ notes
- Relevant photographs of property damage or physical injury
- Videos or photos that demonstrate the plaintiff’s activities both before and after the injury
- Social media posts or other digital communications
- Sworn testimony of friends and family
- Testimony or records from the deceased person’s workplace that demonstrate any differences in the person before and after the injury if they were at work during that time
If you’re grieving the loss of a loved one as the result of an injury or accident, first off we’re so sorry for your loss. We understand that no amount of money can bring someone back, but it can provide a source of relief from stress and financial loss during a hard time. If your loved one’s death was the result of someone’s negligence, you deserve to be compensated just as they would have been if they lived.