Understand the Differences Between a Survival Action and Wrongful Death Action


Docket No.: A-2143-20

Decided October 7, 2021

Submitted by New Jersey Motor Vehicle Accident Lawyer, Jeffrey Hark

In a recent unpublished decision, the Appellate Division of New Jersey reviewed the difference between a wrongful death action and a survival action in light of a statute of limitations issue.

In Chandler, the decedent, Joseph E. Chandler, was struck by an automobile while crossing a street on December 21, 2016. The vehicle that struck the decedent was driven by defendant Todd W. Kasper and owned by defendant Thomas C. Kasper. As a result of being struck by that vehicle, the decedent suffered significant injuries and passed away six days later.

Just prior to the statute of limitations running as to the decedent’s and his heirs’ claims, on December 18, 2018, the decedent’s daughter, plaintiff Damaris Chandler, filed a two-count complaint as Administrator Ad Prosequendum of her father’s estate. The complaint alleged that the decedent died on December 27, 2016, intestate and that plaintiff had been appointed as Administrator Ad Prosequendum prior to the filing of the complaint. The first count asserted a claim under the Survivor’s Act for the personal injuries and pain and suffering the decedent experienced prior to his death. The second count asserted a wrongful death action, which claimed that the decedent’s daughters, plaintiff and India Ruhlman, his son Kerri Chandler, and his other “survivors and next of kin” were entitled to damages. In response, defendants filed answers to the complaint. Defendants Todd and Thomas Kasper’s answer asserted as a separate defense that plaintiff’s claims were statutorily barred by both the wrongful death statute and by the Survivor’s Act.

Thereafter, in November 2020, defendants filed a motion for summary judgment seeking dismissal of the Survivor’s Act action because plaintiff lacked standing to bring that claim as letters of general administration had never been issued to her. Plaintiff filed opposition to the motion and a cross-motion to file a second amendment complaint to reflect that on December 8, 2020, plaintiff obtained letters of general administration.

The motion judge denied defendants’ motion and granted plaintiff’s cross-motion, placing his reasons on the record that same day. In his oral decision, the motion judge discussed the case law relied on by the parties and raised by the judge, before concluding that plaintiff acted diligently and “provided [defendants] timely notice of the [Survivor’s Act] claim by the initial complaint and . . . perhaps there’s a defect in the standing of . . . plaintiff, but [she] was seeking to proceed diligently. [And,] New Jersey Law holds that it would be inequitable to deny [a] party their day in court because of ignorance.”

Defendants appealed. The Appellate Division reversed, finding that the filing of the complaint prior to the establishment of an estate was a nullity, as plaintiff lacked standing at that point. Any delay could have been avoided by filing the appropriate probate action, tolling the statute of limitations.  Because this did not occur, the statute of limitations lapsed, plaintiff lacked standing to bring the suit, and the complaint should have been dismissed on summary judgment.

This case is important to understand the differences between a survival action and wrongful death action. The survival action can only be brought by the decedent’s estate for claims they could pursue as if they were still living. The wrongful death action can be brought be the decedent’s next of kin for claims that exceed what would be the decedent’s own claims, for damages resulting to the decedent as a result of the cause of their death.  For instance, pain and suffering between the time of injury and their ultimate demise.

If you or someone you know has questions about wrongful death and survival actions, or were injured in a car accident, truck crash, or slip and fall, call the experienced personal injury attorneys at Hark & Hark today. For personal injury matters, no money is paid up front, and fees are only collected if a recovery is made. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington ,Haddon Heights ,Pine Hill ,Bellmawr ,Haddon Township , Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.


Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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