When a person dies due to another party’s negligence, Colorado law allows two types of civil claims: survival actions and wrongful death claims.

While these two types of cases are similar, they involve key differences, including the following.

Wrongful Death vs. Survival Action Claims

Legal Grounds

The legal grounds for a survival action and a wrongful death case arise from the same situation. Someone’s conduct – whether negligence, recklessness, or default – caused the death of another person, and they are legally responsible for the damages that result. In a survival action, the victim must have survived for some amount of time after the accident that injured them.

Purpose

A wrongful death lawsuit allows the surviving family members of a decedent to seek compensation and justice from the party responsible for their loved one’s death. This helps provide them with compensation for the emotional and financial harm they suffered because of the death. Only specific family members have legal standing to file and benefit from this type of claim.

A survival action allows the deceased’s estate to recover damages that the victim would have been entitled to had they lived. The personal injury cause of action survives the death of the victim, holding the negligent party accountable for the harm they suffered. This legal claim covers damages the victim incurred between the time of their injury and death.

Who Files

Colorado’s wrongful death law grants the surviving spouse of the decedent the exclusive right to file in the first year after death. In the second year, the surviving children can file. If there is no surviving spouse or children, the parents can pursue the legal claim.

Only personal representatives have the legal right to file a survival action in Colorado. If the victim did not have a will or name a personal representative, the court can appoint one.

Damages

Wrongful death claims focus on the family members’ losses and compensate them for these losses, such as:

Lost future income
Funeral expenses
Burial costs
Emotional distress
Loss of companionship, love, and guidance

Wrongful death claims seek to ease the financial and emotional burden brought on by a premature death.

Survival actions seek compensation for the losses the victim suffered and would have had a right to pursue had they lived, such as:

Medical bills
Lost wages from the time between injury and death
Property damage

Non-economic damages, such as pain and suffering, are not allowed in survival actions.

Who Benefits

Wrongful death claims benefit surviving family members, directly compensating them for their losses. In contrast, survival actions benefit the estate. Any damages that the estate recovers are distributed according to the victim’s will or the laws of intestacy if there was no will.

Contact an Experienced Personal Injury Lawyer for More Information

Some situations provide a legal basis for both a wrongful death and a survival claim. The best way to understand which type of case or cases you can file is to contact an experienced wrongful death and survival lawyer.

Dulin McQuinn Young can discuss your situation during a free consultation.