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Understanding Survival Claims

by | Jan 12, 2021 | Firm News

When a loved one has passed away as a result of another person’s wrongdoing, the decedent’s next of kin will commonly have two separate but related claims: a survival claim and a wrongful death claim.
In a survival claim, a representative of the decedent’s estate, such as the executor of the decedent’s will or the decedent’s adult son or daughter, can bring a claim for the decedent’s injuries prior to his death.  In such a suit, the representative can recover damages for any injuries that the decedent suffered when he was alive, such as medical expenses, pain and suffering, emotional distress, and loss of normal life.
Common Survival Claims
The Illinois Survival Statute, 755 ILCS 5/27-6, provides that actions to recover damages for an injury to the person survive the person’s death.  This means that the decedent’s representative can bring a claim on behalf of the decedent after his death.  Common claims that are brought are: (1) negligence claims (for example, if the decedent was killed in a car accident as a result of another driver’s negligence, or as the result of a doctor’s medical malpractice); (2) claims for abuse or neglect in a nursing home, and (3) civil rights and police misconduct claims.  However, some causes of action do not survive a decedent’ death, such as intentional infliction of emotional distress, false imprisonment, and invasion of privacy.
Damages in Survival Claims
In Illinois, the representative of the decedent’s estate is entitled to a money damage award that will fairly compensate the estate for injuries that the decedent suffered from the time of the defendant’s wrongful conduct until his death.  When considering the appropriate amount of damages, it is important to consider the nature, extent, and duration of the decedent’s injuries.
Common elements of damages that are recoverable are medical expenses, pain and suffering, emotional distress, and loss of normal life.  For a plaintiff to recover for pain and suffering, a plaintiff must prove that the decedent actually and consciously endured pain and suffering before his death, and this element of damages will not be available when the death is instantaneous or if the decedent is rendered immediately unconscious.   Punitive damages are also available in limited circumstances when strong equitable considerations support such an award.  For example, if a decedent was killed by a drunk driver, then the plaintiff may recover punitive damages.
Any damages recovered become an asset of the decedent’s estate.  In Cook County, damages in a survival claim must be distributed by the probate court.  If the decedent had a will, then the funds will be distributed according to the will’s terms.  If there was no will, then the funds will be distributed according to the Illinois rules of descent and distribution provided in 755 ILCS 5/2-1.  Under Section 2.1, if the decedent had a surviving spouse and children, then the spouse gets half of the award and the remaining award is split evenly among the children. If there is no surviving spouse and but surviving children, then the children will split the damages equally.
Statute of Limitations
Pursuant to the Illinois Code of Civil Procedure, a survival claim arising out of personal injuries to the decedent typically must be brought before within two years of the underlying wrongful conduct that caused the death, or within one year after the decedent’s death, whichever date is later.  See 735 ILCS 5/13-209.
Arlo Walsman