Survival of Tort Actions (2024)

This final chapter in our torts course will focus on some of the “loose-end” details that are important to keep in mind when analyzing tort liability. Please note that what we cover in this lesson applies to all of the torts we have covered in all previous chapters.

Survival of Tort Actions

Under the common law, there was no survival of tort actions. That is to say, if either the plaintiff or the defendant died before the resolution of the tort action, the action was terminated.

Today, most jurisdictions have statutes allowing for the survival of tort actions. Where statutes do allow for survival of tort actions, survival is allowed both for personal injury cases and for cases involving property damage that the decedent suffered before he died.

Further, most jurisdictions allow the plaintiff to recover for the decedent’s pain and suffering. See DeLong v. County of Erie, 60 N.Y.2d 296 (1983). However, even where a statute allows for the survival of tort actions, actions that involve damage to the plaintiff’s intangible interests will not survive the death of one of the parties. See Innes v. Howell Corp., 76 F.3d 702 (6th Cir. 1996). Thus, actions for defamation and invasion of privacy will not survive.

Finally, the plaintiff will not be able to recover punitive damages after the death of the defendant from the defendant’s estate.

Wrongful Death

Under the common law, there is no such thing as a cause of action for wrongful death. Therefore, a person who killed another person, either intentionally or unintentionally, could be held criminally liable for the death but not civilly liable. However, today all jurisdictions have statutory causes of action for wrongful death.

Wrongful death actions can arise in two forms. The “survival” wrongful death action allows for:

1. The survival of any tort action that the decedent himself could have brought and
2. Extends that action to include recovery for any damages the decedent’s estate have suffered due to the decedent’s death.

For example:

Bluto is suing Neidermyer for negligence arising out of an incident when Neidermyer hit Bluto with his car. Bluto dies during the trial. In a jurisdiction that allows “survival” wrongful death actions, Bluto’s son, Otter, can assume Bluto’s role as the plaintiff. This allows Otter to collect any damages Bluto himself would have collected including pain and suffering, lost earnings, lost future earnings and medical bills. In addition, Bluto’s original action for negligence can be expanded to include an action for wrongful death so that Otter will be able to recover for any damages he sustains himself as a result of Bluto’s death.

The second kind of wrongful death action that is allowed is the “true” wrongful death action. “True” wrongful death actions allow for a new cause of action to be brought by the decedents estate that has nothing to do with any cause of action that the decedent might have had pending when he died. A decedent’s estate that brings a “true” wrongful death action cannot recover damages that the decedent himself could have recovered. All the decedent’s estate can recover is the damage that they themselves have suffered as a result of the decedent’s death. Most jurisdictions allow for “true” wrongful death causes of action. See Hopkins v. McBane, 427 N.W.2d 85 (N.D. 1988). For example:

Bluto is suing Neidermyer for negligence arising out of an incident when Neidermyer hit Bluto with his car. Bluto dies during the trial. In jurisdictions that allow for “true” wrongful death actions, Bluto’s estate would have to bring a separate cause of action for wrongful death that has nothing to do with the existing negligence case and all they could recover are damages they have suffered themselves as a result of Bluto’s death.

Typically, the way a jury calculates pecuniary damages that the estate sustains is to take the decedent’s annual salary and multiply it by the number of years the decedent was expected to work. That number, minus projected living expenses, will represent the pecuniary damages that the decedent’s estate may be awarded. For example:

Neidermyer negligently inflicts fatal injuries on Bluto as the result of a car accident. Bluto, a successful paralegal, was forty years old and earning $100,000 at the time of his death. Let’s assume that Bluto would have worked until he was sixty-five years old. That being the case, he would have worked another twenty-five years and, at a salary of $100,000 per year, he would have earned $2.5 million dollars over the remainder of his career. Let’s also say that the court estimated that Bluto would have incurred $20,000 in living expenses each year during the same twenty-five year period. This comes to a total of $500,000. By subtracting Bluto’s living expenses over the remainder of his career ($500,000) from what he would have made over the remainder of his career ($2.5 million), we are left with $2 million in pecuniary damages that Bluto’s estate can collect in a wrongful death case.

If the decedent was not a wage earner (for example a stay-at-home parent), juries will calculate pecuniary damages based on the amount of money it would require to replace the services the decedent provided to the household.

If the decedent was a child, the jury will establish pecuniary damages based on the value of the loss of the child’s life, including contributions the child might have made after becoming an adult. In some states, these kinds of damages are predetermined by statute. For example, in New York, pecuniary damages for the wrongful death of a child are capped at $50,000.

Additionally, there may be damages such as loss of companionship and other similar damages which we will discuss later on in this chapter

Finally, as a general rule, punitive damages are not awarded in wrongful death cases.

As far as defenses for wrongful death actions are concerned, any affirmative defense that the defendant could have raised had the decedent lived can be used in a wrongful death case.

Thus, contributory negligence and assumption of the risk can bar recovery, and comparative negligence can reduce recovery, in a wrongful death action.

Finally, where the decedent has only one beneficiary and that beneficiary’s negligence has contributed to the death of the decedent, the beneficiary is barred from bringing a wrongful death action. For example:

Neidermyer and Bluto’s nephew, Flounder, are driving recklessly and accidentally run over Bluto. Flounder is Bluto’s only living relative and thus, is Bluto’s only beneficiary. In this instance, Flounder will be barred from bringing a wrongful death action against Neidermyer.

If there are several beneficiaries and only one is negligent, the non-negligent benefactors can recover for wrongful death.