As a law student, I often found myself confusing these two related tort topics. They even sit right next to each other in the Pennsylvania Consolidated Statutes: Wrongful Death – 42 Pa. C.S.A. Section 8301; Survival Action – 42 Pa. C.S.A. Section 8302.
At their most basic level, a wrongful death action aims to recover damages relating to a death caused by wrongful act; a survival action is just a claim brought by the representative of a decedent’s estate.
The thing that I found to be confusing was the “survival” aspect of the claim. The claim involves an estate, but why is it a survival action? Well, it is not describing the person, but the claim itself. The foundation of the survival action is that the estate representative acts as a stand in for the deceased person. The claim is the part that “survives,” not necessarily the person.
Litigation may take a long time. A chronically ill or elderly litigant may die during the litigation of a complex claim from causes unrelated to the harm in the claim. The survival action allows the estate of that now deceased litigant to carry on the recovery of those damages.
The recoverable damages of each claim will be the next topic.
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