When someone dies due to the negligence, recklessness, or intentional act of another, the person or company who caused the death may be responsible for damages. Under Ohio’s wrongful death statute, there are two causes of action that can be brought: a wrongful death claim; and a survival action. We will discuss each step and explain the differences between them.
Ohio Survival Actions
If someone causes injury to you, you may have a cause of action to recover damages from them. In such a case, you could file a lawsuit and recover for damages such as medical expenses, lost wages, and pain and suffering caused by the accident. However, if you die, you are not able to file this lawsuit yourself. That is where a survival action comes in. Although you may have passed away, your right to bring an action against the person who harmed you “survives.”
A survival action is not a specific type of claim itself; instead, it is a mechanism by which an Estate can continue a claim or bring a new claim on behalf of someone who has passed away. While it is common for survival actions to be brought in connection with a “wrongful death,” it is not a requirement. A person could have died of natural causes unrelated to an accident but still had unresolved personal injury claims at the time of their death. A survival action would permit the Estate to pursue those claims.
Because a survival action is not a “stand-alone” claim but simply a right for the Estate to pursue claims that the decedent had at the time of their death, the type of damages that can be recovered depend on the underlying claim. Frequently, the individual suffered injuries due to the negligence of another. In such cases, the individual (in life or death) could seek compensation for:
- Medical expenses
- Lost earnings
- Pain and suffering between the accident and death
Again, the decedent’s Estate steps in as their representative and pursues the claims on their behalf. Any compensation recovered belongs to the Estate and is distributed under Ohio law. This means that any money recovered may first be used to pay any taxes and debts the Estate owes. After that, the funds may be distributed according to the person’s Will or, if they did not have a Will, according to Ohio’s law of distribution to heirs.
Ohio Wrongful Death Actions
In contrast to a survival action, which deals with injuries and damages suffered by the decedent before they passed away (regardless of whether they are related to the cause of death), a “wrongful death” claim only arises when the wrongful act of another caused a person’s death. Additionally, where a survival action is focused on claims the decedent had, a wrongful death claim belongs to the decedent’s closest relatives (e.g., spouse, children, parents) for the loss they suffered because of their loved one’s death.
Unlike recovery under a survival action, recovery in a wrongful death claim is NOT estate property. However, like a survival action, a wrongful death claim still may only be brought forward by an Estate Representative.
To prevail in a wrongful death claim, the Estate Representative must bring the action within two years of the date of death, prove that a wrongful act caused the decedent’s death, and establish that decedent’s surviving family members have suffered damages as a result of the death.
Damages that are recoverable by close family members include:
- Loss of support from reasonably expected earnings from the decedent
- Loss of companionship
- Mental anguish
- Loss of prospective inheritance
Again, compensation recovered by the Estate Representative for wrongful death belongs to the decedent’s family, who suffered loss because of the death. The compensation does NOT belong to the Estate, is not subject to Estate debt and taxes, and is not distributed according to the Will. Instead, proceeds are allocated and distributed in accordance with a probate court order.
Contact an Ohio Wrongful Death Claim & Survival Action Lawyer
When a loved one has passed away, and you believe it is the result of the wrongful acts of another, it is recommended that you consult with an experienced legal team. The lawyers at Charles Boyk Law Offices will discuss your options in a free consultation. If you are concerned with the costs and are hesitant to call, remember that we do not charge any upfront fees but are willing to work on a contingency fee plan, so we do not get paid until we settle or win your case.
Our team of wrongful death specialists and medical staff will analyze the evidence available and consult with experts to build a case around the facts to support that your loved one’s death resulted from the defendant’s carelessness. Our team will work to win you the compensation your family deserves. Contact us today before time is up and you can no longer file your case.