Survival Actions And Wrongful Death Actions


There is sometimes confusion about the difference between a survival action and a wrongful death action. They are separate legal actions that seek recovery of separate damages: the damages that the deceased person suffered before death (a "survival action") and the damages that the death caused to the close family of the deceased person (a "wrongful death action").

What is a "survival action"?

A "survival action" is a lawsuit brought by an estate to recover damages that the deceased person was entitled to before death. Many types of survival actions are recognized by Wisconsin Statute § 895.01. Sometimes, for example, an injured person dies for reasons totally unrelated to whatever caused the injuries. For instance, imagine that a person was injured by a drunk driver in a car accident but then a few months later died from natural causes totally unrelated to the car accident. In those circumstances, the person's estate might bring a so-called "survival action" to recover the damages that the injured person was entitled to recover from the drunk driver.

Why do wrongful death cases sometimes involve both "survival actions" and "wrongful death actions"?

In cases where a wrongful death occurs, there may be grounds for filing a "survival action" for the damages that happened before death, in addition to a "wrongful death action" for the damages that resulted from the death itself. For instance, taking the example of a drunk driving accident again. Someone who was seriously injured in a car accident caused by a drunk driver might survive the accident but suffer for months before finally dying from the injuries suffered in the accident. There could then be a "survival action" brought by the estate to recover damages for the medical expenses and pain and suffering that happened before death. In addition, there could be a "wrongful death action" for recovery of damages suffered by the person's loved ones due to the wrongful death, such as loss of future earnings, and loss of future companionship.