When you lose a loved one due to another person’s negligence, you often will have a potential claim against that person for wrongful death. However, in South Carolina, there are two different types of wrongful death suits, and it is important to understand which is which. If you are a family member, as opposed to the executor or another person administering the deceased person’s estate, you would choose to mount what is referred to as a survival action.
Wrongful Death Action vs. Survival Action
It is extremely common for the two types of suits to be mixed up. However, wrongful death suits can be distinguished simply because they are brought exclusively by the executor of the deceased’s estate. They are brought under a different statute than survival actions, and are brought to seek compensation for the loss of a loved one – for example, a spouse might file for the value of lost earnings, funeral expenses and the like.
On the other hand, survival actions are usually brought on by the deceased person’s representative, which is usually a family member. (There is nothing preventing the executor and the personal representative from being the same person, but they are not always.) They are able to bring suit under a cause of action that the deceased would have been able to sue for had they lived through the incident in question. For example, if a person is killed in an auto accident, a survival action may be able to be brought by their personal representative against the driver of the other car.
How To Bring A Survival Action
In order to bring a successful survival action in South Carolina, you must be able to demonstrate that your loved one had a cause of action on which they could recover if they had survived (in other words, something to ‘survive’ the person’s death). This can be difficult, because with any standard case of personal injury or negligence, it is necessary to prove that actual, tangible injury was done to the person affected. It does not have to be physical, but it must be more tangible in nature than, for example, mere fright or minor cuts and bruises. If someone was killed instantaneously, or it cannot be proved that they were conscious enough to experience harm, a survival action will most likely fail.
Be advised that one important caveat applies, and may make a difference as to whether or not a survival action can be brought at all. Since a survival action’s proceeds are intended for estate of the deceased, there must be heirs or devisees for the deceased’s property to pass to. For example, if a person is killed in an auto accident and the representative of their estate intends to bring a survival action, there must be heirs – at law, or designated by the decedent – who may benefit. If there are no heirs – if the person had no family or other beneficiaries of any will, a survival action may not be mounted, because there is no one legally entitled to prosecute any cause of action.
Ask A Knowledgeable Attorney
If you have just lost a loved one, you may not want to deal with the implications of bringing suit against the person who helped to cause it. However, it can help your family stay financially stable, and provide some measure of comfort as the days roll on. It is best to consult an experienced survival action attorney to ensure that all your questions are answered. The skilled North Charleston wrongful death attorneys at Callihan & Syracuse are happy to answer your questions and suggest options for you going forward. Contact our attorneys to set up an appointment today.