The Difference between a Survival Action and a Wrongful Death Action

Silverman, McDonald & Friedman handles wrongful death and survival actions for families throughout Delaware. If you have questions about our services, or wish to schedule a free initial consultation at one of our offices in Newark, Wilmington or Seaford, please contact us today.

When someone tragically dies due to the negligence of another person, the family has essentially two types of legal claims. The first claim is called a survival action. The second is a wrongful death claim. In both claims, it is necessary to prove that someone or some company caused your loved one to die. Car accidents, slips and falls on the property of another, and construction accidents often kill the occupants, shoppers, and workers. If a defective product caused the death, then the manufacturer and other sellers can be held liable.

A survival action awards damages based on what the decedent would have been entitled to if he/she had lived. A wrongful death claim awards damages to the members of the family who lost the support and guidance of their loved one. Normally, a personal representative brings both types of cases in one lawsuit. The right to bring a survival action is set forth in Chapter 10 Section 3701 and 3704 of the Delaware Code. The authority for a wrongful death case is found in Chapter 10 Sections 3721-3725, of the Delaware Code.

Survival action essentials

Damages in survival actions look at the time frame from the date of the accident until the accident victim died. Damages include:

• The pain and suffering of the victim. Generally, there needs to be a showing that the victim lived for a short while after the accident – that death wasn’t instantaneous.
• Medical costs. Any hospital, doctor, or medical bills for trying to help the victim survive or for care in his/her last hours or days.
• Wage loss. The responsible parties should pay for the income the decedent couldn’t earn from the injury date until the date of death

Additional damages may be justified. For example, punitive damages can be awarded in a survival action if the responsible defendants’ actions were wanton or willful. To obtain punitive damages in a Delaware survival action, there must also be an award for pain and suffering. If your loved one was killed by a drunk driver, then punitive damages may be justified.

Wrongful death essentials

A wrongful death action in Delaware is brought on behalf of the spouse, children, and siblings. There are five different types of damages in Delaware in a wrongful death claim:

• The loss of financial support and benefits the deceased would have given the family members.
• The loss of services the deceased would have provided children, the spouse, and the household.
• Reasonable funeral costs up to $7,000. Some exceptions which may allow a higher award may apply.
• The mental anguish of the spouse and children due to the death of the beloved relative – with some exceptions.
• Loss of payments for child support or spousal support

Wrongful death claims can be very complex. Some of the issues that must be resolved include:

• What proportion a lump sum settlement or verdict is paid to each relative?
• What happens if the deceased is a child?
• What are the rights of stepchildren, half-children, and adopted children?
• Who will be the personal representative?

In Delaware, punitive damages are not part of the wrongful death claim.

At Silverman, McDonald & Friedman, our wrongful death lawyers guide families through this most difficult time. We demand that wrongdoers pay all damages that apply. While no financial award can fully compensate you for the death of your loved one, we fight to get your family all the compensation the law allows. Phone us 302-888-2900 or use our contact form to schedule an appointment. We have law offices in Seaford, Wilmington and Newark.

Related Wrongful Death Articles

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• Filing a Wrongful Death Claim in Delaware after a Fatal Car Crash