Chapter 9 Wrongful Death and Survival Actions

LibraryThe South Carolina Law of Torts (SCBar) (2023 Ed.)
CHAPTER 9 WRONGFUL DEATH AND SURVIVAL ACTIONS

Common law had no remedy in tort for a wrongful killing. Therefore, "there was neither liability nor right of action, both died with the injured person."1 As a result, legislative intervention was required, and this legislation took two different forms. First, the "wrongful death" statute provides a cause of action for the statutory beneficiaries, like spouses and children, to sue for their losses suffered as a result of the wrongful death. Second, a "survival statute" allows the estate to sue in tort on behalf of a decedent.

Although beyond the scope of this book, note that, as a general matter, counsel must investigate the procedural rules governing probate administration and tort litigation. Among matters of obvious importance are rules governing the appointment and role of a personal representative and the distribution of a lump-sum damages award. Of additional importance are notice to beneficiaries and heirs of a pending action or distribution, posting of bonds, notice to creditors of the estate, payment of legitimate claims against the estate, and judicial authorization for compromise or settlement of claims. This summary overview is not intended to be an exclusive checklist, but as a starting point.

Survival actions are actually not new actions; the term merely refers to the abrogation of the common law rule that a cause of action was abated by death.2 Survival actions allow the prosecution of any claims for personal injury by or against the estate of one who has died since the cause of action arose, and the injury suffered need not be the cause of death.3

Although the personal representative of a decedent's estate will bring both survival and wrongful death actions, the actions involve different claims and are independent of each other.4 Under Code Pleading the administrator could not join a wrongful death and a survival action into one cause of action.5 Even as separate causes of action, they could not be tried together except by consent of the parties, but under modern pleading practice the claims may be pursued and tried in one action.6 Regardless of whether the actions are joined, the damages award for each claim is distinct. Thus, amounts recovered in a wrongful death action are not assets of the decedent's estate; instead, they represent loss to the statutory beneficiaries and therefore belong to them.7 Similarly, recovery for wrongful death will not bar a later survival action for injuries suffered by the deceased.8

A plaintiff may plead in the alternative for wrongful death relief as well as for recovery under the Federal Employers Liability Act,9 even though the remedies are mutually exclusive, if the issue of which remedy would be applicable is uncertain.10 If the action lies under...

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