WRONGFUL DEATH: WHAT IS A SURVIVAL ACTION AND WHAT ARE SURVIVAL DAMAGES?

WRONGFUL DEATH: WHAT IS A SURVIVAL ACTION AND WHAT ARE SURVIVAL DAMAGES?

Survival Action in Missouri:

In Missouri, all of the elements of damages may be recovered in a single action, including survival damages. Survival damages are those damages that occurred to the deceased between the time of injury and the time of death. These damages are called survival damages because they are just that: Those injuries and damages for which the deceased could have brought a claim had he survived.

MISSOURI STATUTORY LAW: RSMo. 537.090 provides:

In addition, the trier of the facts may award such damages as the deceased may have suffered between the time of injury and the time of death and for the recovery of which the deceased might have maintained an action had death not ensued.

Missouri Survival Damages:

Survival damages include the expenses incurred in connection with the final illness such as medical bills, wage loss, and conscious pain and suffering incurred between the time of injury and the time of death. The claimant must be able to prove by a preponderance of the evidence that the victim was living and conscious following the initial injury for some appreciable amount of time in order to maintain a claim for pain and suffering prior to death. Types of evidence include witness testimony, autopsy reports through the coroner, and other types of relevant medical experts. What is an appreciable amount of time is left to the jury to decide. The specific injuries incurred tend to impact recovery for conscious pain and suffering.

Survival Action/Damages in Kansas:

Kansas statutory law, unlike Missouri, provides for two separate actions for death due to the negligence of another; a survival action, K.S.A. 60-1801 provides for the survival action whereas K.S.A 60-1901 provides for the wrongful death action.

KANSAS STATUTORY LAW: K.S.A. 60-1801 provides:

In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, or for death by wrongful act or omission, shall also survive; and the action may be bought notwithstanding the death of the person entitled or liable to the same.

The administrator of the estate is the proper party to bring a survival action in Kansas.