Survival Action Law and Legal Definition

Survival action refers to a lawsuit that is brought on behalf of a decedent’s estate for injuries or damages incurred by the decedent immediately before dying. Survival action also derives from the claim that a decedent who had survived would have had as opposed to the claim that beneficiaries might have in a wrongful death action. In Yellow Horse v. Pennington County, 225 F.3d 923 (8th Cir. S.D. 2000), it was held that a survival action is the decedent's own personal cause of action, which does not abate at decedent's death, but is brought by a representative seeking damages the decedent could have obtained for injuries had he survived.

The measure of damages in a survival action is the decedent's pain and suffering prior to death and loss of gross earning power from the date of injury until death. However, it would be less the probable cost of maintenance as proved by evidence and any amount awarded for wrongful death.