7. Survival & Wrongful Death

Question 1

What is the rule for survival of tortious actions?

Answer 1

Victim can recover damages incurred between his injury + his death

Victim’s cause of action survives Victim’s own death in;

• Personal injury cases
• Property tort cases

Victim’s cause of action does NOT survive Victim’s own death in intangible personal interest cases;

• Defamation
• Invasion of right to privacy
• Malicious prosecution

Question 2

Who may recover for Decedent’s wrongful death?

Answer 2

Spouse

Next of kin

NOT Creditor

Question 3

How much can be recovered from Decedent’s wrongful death?

Answer 3

1) Pecuniary injury
- Loss of companionship/support
- NOT Decedent’s pain/suffering (separate loss in personal injury suits)

2) To extent Decedent would have recovered if alive
- Reduced by Decedent/Beneficiary’s contributory negligence