Wrongful Death and Survival Actions

September 24, 2020 Accident

Under Louisiana law, if a person dies here in Louisiana because of the wrongful conduct of another, there are two potential legal cases that can be filed — a wrongful death case and a survival action. As the Louisiana Supreme Court once explained, each type of case “… arises at a different time and addresses itself to the recovery of damages for totally different injuries and losses.” See Taylor v. Giddens, 618 So. 2d 834 (La. Supreme Court 1993).  This blog post will examine and differentiate between a wrongful death and survival action.

In a survival action, the right to sue comes into existence when the victim is injured. The heirs of the victim can attempt to recover money damages for consequential damages (such as medical bills) and for the victim’s mental and physical pain and suffering that occurred from the moment of the injury to the time of the victim’s death. Sometimes there is a short interval between the injury and death; sometimes the interval is substantial. Survival actions are permitted by Louisiana Civil Code article 2315.1. By contrast, the right to sue for wrongful death comes into existence when the victim dies of his or her injuries. A wrongful death case is filed by the victim’s family for their injuries such as loss of affection, loss of companionship, loss of support, etc. Wrongful death actions are permitted by Louisiana Civil Code article 2315.2.

Sometimes a survival action cannot be filed if the victim’s death was instantaneous or if there is no evidence showing suffering from the point of injury to the time of death. A good example of this comes from the case of Sacco v. Allred, 845 So.2d 528 (La. App. 1st Cir. 2003). In that case, the victim was in a car wreck. When the first responders arrived, the victim was unconscious and never regained consciousness. There was no evidence that he suffered pain or anguish following the crash. Further, toxicology reports showed the victim had a very high blood alcohol level which, according to the experts, precluded him from feeling any sort of pain even if he was awake. The court denied recovery on the survival action since there was no evidence that the victim suffered any pain or anguish between the time of the crash and his death.

However, even if there is a small — even tiny — window of time during which the victim could have suffered physical pain and/or mental anguish, an award can be made on a survival action. A good case example here is Battalora v. Ficklin, Case No. 2009 CA 0662 (La. App. 1st Cir. 2009) which involved a motorcycle crash. The victim, 19-year old Joshua Battalora, was riding his father’s motorcycle when he was hit head-on by a drunk driver. As a result of the collision, Battalora was thrown from the motorcycle and landed 29 feet away. Battalora died when he hit the pavement. With respect to the survival action, the defendant in the case argued that no award should be allowed because Battalora died instantly. However, the court disagreed. There was a small amount of time between the injury, being hit by the drunk driver’s car, and his death. Among the damages allowed by Louisiana law in a survival action is recovery for pre-death fear and apprehension of danger. The court concluded that, as he was flying through the air, Battalora “was no doubt aware of his impending death or injury.” The court awarded $25,000 on the survival action and the award was affirmed on appeal.

Contact Experienced Louisiana Personal Injury Lawyers Today

For more information, contact the Louisiana personal injury attorneys at Mansfield, Melancon, Cranmer & Dick LLC. We have a proven track record with many types of personal injury cases and know how to prosecute both survival and wrongful death actions under Louisiana law. Contact us by calling one of our offices: New Orleans at (504) 500-1108, Baton Rouge at (225) 612-0800, or Lafayette at (337) 409-0003. You can also contact us 24/7 by using our “Contact Us” link.