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In a wrongful death case, the negligence causes the death. In a survival action, someone was injured and has a claim against a negligent party. In a Winston-Salem survival action case, the individual was injured and before their claim was resolved, the injured person died for reasons unrelated to the negligence. The personal representative of the decedent can continue with the suit against the negligent party.

A wrongful death attorney can be extremely helpful in pursuing a survival action suit, due to their closeness with much of the related processes.

Process of the Case

The individual who qualifies as the personal representative would be able to pursue the suit. There is a specific statute, chapter 28 of the North Carolina General Statutes, that sets forth a list of who the law would be looking to qualify, like parents, spouses, children, and relatives. It goes down the list looking for the person who is available and capable of qualifying as personal representative.

The first steps in initiating a survival action would be making sure that somebody is officially qualified as a personal representative of the deceased person and has the power to file the lawsuit. Then that person is named as the plaintiff in the lawsuit in their representative capacity as personal representative versus the negligent person or persons.

The process in a survival action would be similar to that in a typical personal injury case. The facts are investigated. If there is a way of preserving the eyewitness accounts of the client prior to their passing, steps would be taken to preserve their testimony prior to their death. That would probably the most significant difference in the process.


The damages that are involved in a survival action would be those that are typically available in a personal injury case: pain and suffering, medical expenses, and permanent impairment. However, the death of the decedent would potentially limit post injury damages, because the finite time that the post-injury damages existed is known. Additionally, funeral expenses cannot be included in the damages rewarded.

Evidence collected in a survival action case include medical records, medical bills, evidence of lost wages, testimonies of treating medical doctors, and things of that nature.

Settling Out of Court

Ultimately the client decides whether or not a survival action case is dealt with in civil court order privately in a negotiation. In a survival action suit it would be the personal representative of the deceased with the counsel and advice of a lawyer.

Factors influencing this decision would be the strength of the evidence, the level of egregiousness of the defendant’s conduct, and the damages. If it is a case against a popular defendant with big damages that would be a good indicator that the defense is going to want to try to resolve that and get it out of court. It would be the same for a case where maybe establishing liability is a bit more difficult and the damages are lower.


Survival action cases typically last as long as a typical personal injury case. Factors that may prolong the case are related to establishing the evidence on each of the essential elements. If there are problems on any of those four essential elements, it will always prolong the process.

Role of an Attorney

Their role is to be diligent in their pursuit of the case. Ultimately, they want to achieve a resolution for their client prior to their death if they knew that death was forthcoming most likely at some point part of the resolution of the case. So, they would want to be diligent in pursuit of the claim and preserve the evidence or the account of their client as far as their version of what occurred.

An attorney would establish liability for a Winston-Salem survival action suit by gathering evidence on each essential element of negligence, which would be duty, breach, causation, and damages.

If all of the elements are sufficiently proven, the case is in a posture to be settled. There may be a dispute among the parties about damages, specifically the value of a claim or on causation.

It is important for the client to be an active participant in their case, stay informed as to its progress, assist the lawyer in gathering available evidence if they know about it, to find out what is or is not important, and offer sources of evidence if they know it.