What Is the Difference Between Wrongful Death and Survival Action?

Posted on December 20, 2021 in Wrongful Death Lawsuit

Losing a loved one is incredibly challenging, particularly if the loss of life was caused by the careless or negligent actions of another individual or entity. When this occurs, family members in Oregon should be able to file a wrongful death lawsuit against the alleged negligent party. However, there are other types of claims, called survival actions, that many individuals are unaware of. Here, we want to discuss the difference between wrongful death claims and survival actions in Oregon.

Understanding the Difference Between These Two Legal Actions

Like other states around the country, Oregon has a statute that allows the estate of a deceased individual to file a wrongful death claim in the event that fatality was caused by the negligent or intentional actions of another entity or individual. Oregon’s wrongful death laws are codified in ORS 30.020.

Less well-known is a survival action, codified in ORS 30.075. A survival action occurs when a person passes away after the beginning of a lawsuit or at some point between the negligent conduct and the filing of the lawsuit.

The main difference between a wrongful death claim and a survival action in Oregon is that a wrongful death lawsuit specifically targets conduct that results in the death of the claimant. A survival action could deal with conduct entirely unrelated to the person’s death.

An example of a wrongful death claim could be when a pedestrian is struck by a vehicle driven by an impaired driver and dies immediately at the scene. In contrast, a survival action could exist if an individual suffers an injury as a result of the same type of accident but then dies later due to an unrelated cause. In both of these cases, the legal action will be brought by or continued by the personal representative of the deceased’s estate.

Another difference between a wrongful death and survival action includes the damages available through these actions. In a survival action, the claim is brought by a personal representative specifically to recover damages suffered by the deceased. This includes both economic losses they sustain as well as compensation for their pain and suffering.

In a wrongful death action, the personal representative is able to recover damages incurred by the deceased as well as “pecuniary loss and for the loss of the society, companionship and services of the decedent” sustained by the deceased’s spouse, children, and others who were financially dependent on them (ORS 30.020(2)(d).

The law in Oregon generally requires that wrongful death claims be filed within three years after a person’s death. Survival actions must be initiated by the personal representative within three years from a person’s death if the action was not initiated prior to death. If a claim was initiated prior to death, this survival action is subject to a two-year statute of limitations.

Working With an Attorney

Understanding the difference between a wrongful death claim and survival action in Oregon can be immensely challenging. Family members and personal representatives of an estate should not try to handle these claims on their own. We strongly suggest that you work with a skilled Portland wrongful death attorney who has experience handling both wrongful death and survival action claims and can walk you through this entire process. A lawyer will conduct a complete investigation into the case, gather the evidence needed to prove viability, and fully represent you both in and out of the courtroom.