Wrongful Death and Survival Torts

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Damages in Survival Cases

The survival laws allow awards of damages to decedent estates for harm and losses incurred after the injury until the time of death, so survival damages can include not only decedent pain and suffering but also lost earnings. If the deceased dies immediately, the estate could be awarded damages for pain and suffering if proved but not for lost earnings.

Survival actions raised by executors of decedent estates continue tort claims that the decedents could have raised in life. Wrongful death claims made by surviving dependents are for the loss of decedent contributions to their lives.

Wrongful death and survival claims are for torts by individuals liable for the deaths. As wrongful death claims are not criminal charges, the standard of proof beyond reasonable doubt does not apply. Instead, the claimant’s burden of proof is by a preponderance of the evidence.

Actions under survival statutes pursue remedies for tort offenses against the deceased. Surviving heirs and family may sue for torts that prolong liability beyond the wrongful death. It is important to note that no state allows recovery of both wrongful death and survival damages for the same tort.

The purpose of a wrongful death suit is to compensate surviving family members or rightful heirs for a death caused by an identifiable defendant. Wrongful death actions are civil tort counterparts to criminal offenses charges. In most cases, the damages are for deprivation of income provided by the decedent.

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Maryland Wrongful Death/Survival Laws

In Maryland, tortious deaths support two causes of action for separate and distinct remedies. The survival action permits the personal representative of an estate to recover damages the decedent could have recovered. [1] Damages recoverable are funeral expenses (up to $10,000) and pecuniary and noneconomic losses sustained during the time between injury and death.[2]

Unlike the survival action, the wrongful death action seeks damages suffered not by the decedent but by those affected by the death, (1) primary beneficiaries, spouses, parents, or children of the deceased and (2) secondary beneficiaries, anyone related by blood or marriage and substantially dependent upon the deceased, if there are no primary beneficiaries.[3]

Damages are not limited or restricted by any pecuniary loss or benefit rule but may include mental anguish, emotional pain and suffering, loss of companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance or education where applicable. [4]

Maryland’s limitation on noneconomic damage awards applies to wrongful death actions. [5] If there are two or more beneficiaries, an award of noneconomic damages may not exceed 150 percent of the statutory cap regardless of the number of beneficiaries who share in the award.

There can only be one wrongful death action.[6] The action may be brought by any one of the beneficiaries for the benefit of all who may recover under the statute. [7]

The amount recovered is divided among the beneficiaries in shares directed by the verdict. [8] A practical effect of this rule is that a settlement with one beneficiary to the exclusion of others may be judicially voided. [9] Punitive damages are not recoverable under the statute.[10]

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Jury Award Adjustments

In wrongful death actions, the jury determines the award of damages. The jury determination may not be the last word, however, for the court may adjust the award upward or downward for various reasons. Courts may reduce an award if the decedent had a low income. At the same time, a jury may award lost earnings despite unemployment if decedent had worked in the past and if the plaintiff presents proof of decedent average earnings while employed. If the plaintiff fails to present such evidence of the decedent’s average earnings, the court may set aside the jury’s damage award and order a new trial.

[1] Maryland Estates and Trusts Code Annotated Section (§) 7-401, Smith v Borello, 370 Md 227, 804 A2d 1151 (2002)

[2] Stewart v United Electric Light & Power Co, 104 Md 332, 65 A 49 (1906).

[3] Maryland Courts & Judicial Proceedings Code Annotated, §§ 3-901 et seq, Flores v King, 13 MdApp 270, 282 A2d 521 (1971).

[4] Maryland Courts & Judicial Proceedings Code Annotated § 3-904(d), Scamardella v Illiano, 126 MdApp 76, 727 A2d 421 (1999).

[5] Maryland Courts & Judicial Proceedings Code Annotated § 11-108(b)(2), Anchor Packing Co v Grimshaw, 115 MdApp 134, 692 A2d 5 (1997).

[6] Maryland Courts & Judicial Proceedings Code Annotated § 3-904(f).

[7] Benjamin v Union Carbide Corp, 162 MdApp 173, 873 A2d 463 (2005).

[8] Maryland Courts & Judicial Proceedings Code Annotated § 3-904(c)(2)

[9] Walker v Essex, 318 Md 516, 569 A2d 645 (1990).

[10] Cohen v Rubin, 55 MdApp 83, 460 A2d 1046 (1983).