The Plain Truth About the Practice of Personal Injury Law

Tuesday, May 15, 2012

Does a Lawsuit Survive the Death of a Party?

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In a previous article I explained what Chicago personal injury attorneys refer to as a “wrongful death” action. Today I will describe a companion cause of action known as a “survival action”. At common law a wrongful death action did not exist but was created by the state legislature to avoid the injustice created by the loss of support, sex society and services to the surviving spouse and children. Similarly at death an action for personal injuries abated on the theory that it was owned by the injured and could not be brought by others. Legislation changed this common law concept by permitting others to continue the prosecution subsequent to death. So what then is the difference between a wrongful death and survival actions under Illinois law? The simple answer is that the survival action merely continues the deceased plaintiff’s claim for personal injury damages as if the plaintiff remained alive. Recoverable damages include, pain and suffering, lost wages, loss of normal life, medical bills incurred, scaring and disability. All recovered damages would be deposited as part of the decedent’s estate and distributed pursuant to the terms of a valid will as determined by the probate court. All such injuries and damages are computed from the time of the injury until the time of death.Wrongful death and survival actions may be brought together in the same lawsuit as they cover separate items of damage. 

Even in death the lawsuit survives.

Rick Grossman