A survival action is a type of legal claim in South Carolina. It is brought following a personal injury that results in a death. The decedent’s estate brings the claim, seeking compensation for the losses and suffering that the victim endures between the injury and death.
Survival Claims in South Carolina
South Carolina law recognizes survival claims – the victim’s right to bring a personal injury claim is not extinguished because a death occurs. Rather, their legal claim survives, and their estate may pursue it on their behalf.
When a personal injury results in death, it is a devastating loss. Sometimes, the victim lives for a period of time before death results. They may incur financial losses and great personal suffering during that time. The purpose of a survivor action is to compensate the victim accordingly.
What damages can you receive in compensation for a survivor action?
Damages that may be paid in compensation for a survivor action include:
- Medical bills
- Other healthcare expenses
- Conscious pain and suffering
- Emotional anguish
- Funeral expenses
Is there a recovery for damages after death?
No. A survival action doesn’t allow recovery for damages after death. To the extent that family members have losses and emotional anguish, there is a separate legal action.
How do you start a survival action claim?
To start a survival action claim, you must open an estate. Then, you file a summons and complaint in court. A lawyer can represent you and handle all the required steps.
Is survival action the same thing as wrongful death?
A wrongful death claim is distinct from a survival action, but they can be filed at the same time.
They’re based on the same incident causing death, but they seek different things. Plus, the beneficiaries may be different.
Who files the survival action?
The survival action is filed by the victim’s estate. That’s the executor or administrator. If the person didn’t name a representative in their will, you can petition the court to have one appointed. The executor or administrator files the survival action on behalf of the deceased person and their estate.
Who benefits from a survival claim?
The estate benefits from a survival claim. Of course, the victim doesn’t directly benefit, but the funds are distributed according to their will. If they don’t have a will, the laws for intestate succession apply.
How to Make a Successful Survival Action Claim in South Carolina
To win a survival action claim, you must prove the elements of a negligence claim. You must show that the defendant is legally at fault based on negligence or another theory of liability. In addition, you must show how negligence caused the victim’s death.
Building your case
In a survival action, the victim can’t explain what happened. That means it’s important to look at all elements, finding the necessary evidence to prove the right to compensation.
What types of cases may be the basis for a survival action?
- Car accidents
- Truck accidents
- Pedestrian and bicycle collisions
- Motorcycle crashes
- Slip and falls
- Fires, electrocutions, machinery accidents
- Toxic hazards and chemicals
- Animal bites and attacks
- Medical malpractice
Any personal injury can be grounds for a survival action if the victim suffers a fatal injury and there is time between the injury and death.
Conscious Pain and Suffering in Survival Actions
An important part of any survival action is compensation for conscious pain and suffering. When a victim lives for a period of time following the accident or incident, they may endure extreme pain. They suffer physically and emotionally. This suffering is worthy of compensation.
In South Carolina, this suffering must be conscious – the victim must have experienced it. So, it’s not surprising that a common question in survivor claims is the extent to which the victim suffered consciously.
For example, in Smalls v. South Carolina Department of Education, (S.C. Ct. App. 2000), the victim crossed a two-lane road to meet the school bus. She was struck by a pickup truck. The victim’s parents sued the Department of Education for making the child cross the road to meet the bus. The jury awarded $254,200 in damages. The defense challenged the award, saying that the victim didn’t experience conscious pain and suffering.
The court said that the jury should decide whether the victim experienced conscious pain and suffering if there is any evidence to support it. The father testified that the victim suffered, so the court properly let the jury decide the issue. This case is illustrative of the importance of building evidence of the victim’s pain and suffering, to make sure that compensation is properly awarded.
See also Croft v. Hall, 208 S.C. 187 (1946), where the victim lived 29 hours following a car crash. The claim sought damages for conscious pain and suffering.
Settling a Survival Action
South Carolina law details the process for settling a survival action. The personal representative makes the decision to accept or reject a settlement.
If there’s no case currently pending in court, petition the probate or circuit court regarding the settlement. The petition summarizes the facts, liability, settlement terms, beneficiaries, and attorney’s fees.
Where an action has already been filed, the parties may petition the court. The court must find that the settlement is fair and in the best interests of the victim’s estate.
Once payment is made, the obligation of the defendants is released and forever discharged.
If the administration of the estate is final except for the survival action process, the court may stay required estate accountings until the settlement or verdict is realized. The attorney for the personal representative must notify the probate court immediately and submit a settlement approval order or judgment.
Get Legal Help for a Survival Action Claim in South Carolina
If you have lost a loved one unexpectedly, you can have experienced legal help with a survival action claim. We want to honor your loved one by claiming the appropriate compensation for their estate.
Call 864-362-2640 or message us online to learn more about survival action claims from attorney Bobby Jones. Start your case today.
