Death and Survival Actions
Unfortunately, sometimes a person is
killed as a result of another’s negligent actions. If you are the family member of an individual
who has been killed by another’s negligence, there are remedies available to provide
you with compensation. Of course no
amount of compensation is going to bring back your loved one, or provide a
substitute for having them in your life.
The loss of a loved one often presents not only emotional hurdles, but
financial ones as well. The law is
designed to at least provide some economic relief when an individual is
negligent in causing the death of another person.
wrongful death claim differs from a survival action based on who can bring the
claim and its purpose. A wrongful death
claim is designed to provide a remedy for persons who have lost a loved one as
a result of another’s negligence. A
survival action may be brought on behalf of the estate of a decedent for any
action which they could have pursued, but for their death, typically for
conscious pain and suffering that preceded death. In cases involving accidental death, such as
a car accident, these two claims may co-exist.
The survivor may pursue a wrongful death claim while the estate may
bring a survival action.
Maryland wrongful death claim exists because the legislature has passed a
statute allowing the claim. The
following elements must be proven to prevail on a claim for wrongful death:
(2) proximately caused by the negligence of
(3) resulting in damages to person(s) listed
in the statute;
a party has three years from the death of the person to file suit; however in
some cases additional time may be permitted.
wrongful death claim may be brought by the spouse, parent, or child of the
deceased person. If there is no person
who qualifies in these roles, another person who was related to or
substantially dependent on the deceased person may make a claim.
wrongful death claim is brought for the benefit of the decedent’s
survivors. A survival action is brought
by the personal representative of the decedent’s estate, to recover on behalf
of the decedent, and for the estate, damages, such as pain and suffering,
sustained by the decedent prior to his or her death. The beneficiaries of a claim for wrongful
death may or may not be the same as the beneficiaries of a survival
action. It depends on whether the
decedent had a will and if so who the beneficiaries were.
death claims may compensate the plaintiff for financial loss, but may also
cover things such as loss of consortium, mental anguish, emotional pain and
suffering, loss of society, companionship, comfort, protection, marital care,
parental care, filial care, attention, advice, counsel, training, guidance and
an action for wrongful death must be brought within three years of the death of
in the injured person. Where the death
is caused by exposure to toxic substances in the workplace, the action may be
brought within ten years of the death or three years after the cause of death
is discovered, whichever is shorter.
mentioned above, a survival action is designed to provide recovery for the
deceased victim of another’s negligence.
In other words, it is brought, on behalf of someone who has died, for
pain and suffering that occurred following a negligent act, but before the
death. In order to successfully prove a
survival claim, the plaintiff must show: (a) that the defendant’s negligence
was the direct and proximate cause of the decedent’s injuries; (b) that the
decedent lived following the injuries; and (c) that between the time of injury
and the time of death, the decedent experienced conscious pain.
a short period of time can be enough for the decedent to experience conscious
pain. Compensation can also be attained
for pre-impact fright suffered by the deceased.
information contained on this page is provided as general information and does
not constitute legal advice. The
experienced attorneys at Baldwin & Briscoe, P.C. can assist you if you have
lost a loved one due to the negligence of another. Contact our office to schedule a
no-obligation consultation to review your rights. There is never a consultation fee for claims
involving personal injury or wrongful death.
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