What is a Survival Action?

Posted November 24, 2022 in

If you recently lost a loved one, you might worry about how you will provide for your family while dealing with difficult grief. Wisconsin law allows certain impacted loved ones to file different types of legal claims, including wrongful death claims and survival actions. A compassionate lawyer can explain these types of legal claims and how they can help you. 

Survival Actions

A survival action is a personal injury claim that survives the victim’s death. Wisconsin law allows these actions to be brought even after the victim dies so that the victim’s family can recover compensation to which the accident victim would have been entitled had they lived past the event. The victim does not necessarily have to die from the original accident. For example, if the victim was hurt in a car accident and then died a few months later from an unrelated heart attack, a survival action could still be filed. The law recognizes the victim’s right to recover and that the wrongdoer should not escape liability because the victim died. 

Who May Bring a Survival Action in Wisconsin 

While survival actions benefit the victim’s surviving family, the victim’s estate must bring the survival action to recover damages. The personal representative of the estate files the claim. 

Possible Compensation in Survival Actions

The types of compensation that the personal representative can seek are limited. They are also different from the damages that may be claimed in wrongful death cases. Instead, the personal representative seeks compensation for damages the victim suffered during their life, such as:

  • Medical expenses
  • Lost wages
  • Pain and suffering 

Statute of Limitations for Survival Actions

The statute of limitations for survival actions in Wisconsin is three years. This is not necessarily three years from the date of your loved one’s death. Instead, it begins on the day that your loved one was injured and recognized they had a right to pursue compensation against the at-fault party. A knowledgeable lawyer can explain the deadline that applies to your case. 

Differences Between Survival Actions and Wrongful Death Actions

There are a few differences between survival actions and wrongful death actions, including:

  • Cause of death – For a wrongful death claim, the victim must have died from the event, such as a car accident. In a survival claim, the victim could die from the event or an unrelated cause. 
  • Damages – The damages the plaintiff can recover are different for these types of claims. Survival actions are limited to the damages the victim suffered between the time of the accident and their death. Wrongful death claims allow the victim’s loved ones to recover compensation for economic losses caused by the death, such as funeral expenses and loss of future earnings. They can also recover compensation for loss of society and compensation. 
  • People who can bring the claim – In a wrongful death claim, the victim’s surviving spouse, child, parent, or personal representative can bring the claim. In survival actions, only the personal representative can bring the claim. 

Mingo & Yankala, S.C. can review your situation and determine if you have grounds for a survival action in Wisconsin. There are some situations where you may also have a right to bring a wrongful death claim. Contact us today for a free, confidential consultation to discuss your legal rights and options.