Wrongful Death or Survival Action? Know Before You Go (to Court)

Wrongful Death or Survival Action? Know Before You Go (to Court)

Filing a lawsuit takes more than just a filing fee and an argument.  All levels of the American court system have specific requirements that must be met in order to successfully have “a day in court.”  Thousands of pleadings are dismissed across the country for failing to state their claims in a manner that meets the statutory requirements.  One mistake that is often made is alleging a violation of the wrong law.  Courts are already overburdened and do not have time to fix pleadings that do not allege a violation correctly.  Unfortunately, it can take weeks or even months to discover that a mistake was made.  In some instances, it could mean that the injured party is left without recourse if the statute of limitations has expired during the pendency of the wrongly pleaded lawsuit.

Experienced personal injury attorneys know this as it often happens in cases involving wrongful death actions and survival actions.  The laws governing these actions are very similar, but differ in key ways that could be the difference between recovery and dismissal.

Wrongful Death – Illinois

In a wrongful death action, a plaintiff is claiming that a person or entity caused harm to a loved one and that harm led to the loved one’s death.  In most circumstances in Illinois, the decedent’s loved ones have two years from the date of the person’s death to file a lawsuit for damages.  This is called the statute of limitations.  Failure to file within this time period will mean that the lawsuit is time-barred and the family can no longer seek damages in a court of law.  Caution should be used, however, as the time period can begin to run before the decedent’s death in some circumstances.  If this is the case, a lawsuit must be filed within two years of the date that the person “knew or should have known” of the injury.

Survival Action

This type of action is similar to a wrongful death action, but is filed to address injuries to the decedent prior to their death.  Take, for example a scenario in which a person’s careless actions caused injuries to another, and that person was forced to obtain expensive surgery or became disabled.  If those injuries later lead to the person’s death, family members of the deceased may bring a survival action to recover the costs incurred during the person’s period of injury (i.e. lost wages, medical expenses).  The statute of limitations for these types of cases is different than for a wrongful death action however.  For a survival action, claims must be brought within one year from the date of the decedent’s death or the end of the limitations period for the underlying claim, whichever is longer.

What this means is that under current Illinois law, while a wrongful death case is pending, the statute of limitations can be running on a survival claim act.  By the time a pleading mistake is discovered the latter claim could be time barred.  Though, the Illinois Supreme Court may change this in the future.

Need Help?

If your loved one has been injured by the carelessness or recklessness of another, call today and speak to an experienced attorney about your rights under the law.  The attorneys at the Law Offices of Robert T. Edens, P.C have experience with all aspects of a wrongful death claim and can guide you, or represent you, depending on your circumstances.