- posted: Jun. 07, 2022
- Personal Injury
Do Personal Injury Claims Survive the Death of the Claimant?
Damages in a Personal Injury Claim are broken down into tangible and intangible losses. The tangible losses are called “Special Damages.” The intangible losses are called “General Damages.” Lawyers refer to these categories of damages as “Specials” or “Generals.” So what are they really?
Special damages consist of quantifiable out of pocket losses that can be proven to have been suffered because of the injury inflicted on the claimant. This would include: Medical Bills, Lost income, Loss of future earning capacity, Loss of a business opportunity, Special durable medical equipment such as wheelchairs, braces or even modifications to the home to accommodate the injured person’s ability to use the home such as wheelchair ramps, wider doors, handrails, special beds or even a wheelchair van to transport the injured person to and from medical appointments.
General damages are not subject to quantification but are often the cornerstone of every case: General Damages include: Pain, suffering, discomfort, disfigurement, anxiety, loss of enjoyment of life, and loss of consortium. Consortium can include the loss of the husband wife relationship or even a diminished relationship between parent and child if the child’s injury is such that the parent essentially becomes a caregiver, not a parent.
“Special damages are what are known as “Blackboard Damages.” They can be displayed for all to see in the courtroom on a Blackboard, Whiteboard, or Easel to quantify the actual out of pocket loss.
General Damages are intangible. There is no way to quantify them.
General Damages are left up to the discretion of the jury. What is it worth to lose an eye? The answer can depend on how good the vision is in the other eye, or if the loss of the eye included facial disfigurement. If a person with low vision in one eye loses the good seeing eye, the damages are great because the person is now blind. If the person who loses the eye has 20/20 vision in the other eye and does not need binocular vision to remain gainfully employed, the general damages are less.
So what happens if the claimant dies before the case is finished? As with most legal questions, the answer is: “It depends.”
If the death is the result of the original injury, the case can be converted to a “wrongful death” case and the survivors can continue the claim for their pain and suffering for the loss of their loved one. Statutory “Survivors” only include parents, spouse and children. It does not include other relatives. If the person dies leaving no legal “survivors,” the claim dies with he or she.
Again, there is an exception: In Elder Abuse claims, the pain and suffering of the elder person who suffered the abuse “survives” the death. This is to act as a deterrent to elder abuse. The damages for pain and suffering of elderly abused person go to the statutory survivors who bring the claim on behalf of the abused person.
If the death is from non-accident unrelated causes, the only claims that survive are the “Special Damages.” Those go to the estate, not the statutory “Survivors.” If the Medical Bills are $100,000.00 the estate can collect the $100,000. “Survivors” are not liable for the medical bills or other financial obligations of the deceased, so in most cases, the wrongful death action is brought in the name of the survivors, not in the name of the estate.
This is a thumbnail sketch only of this specialized area of the law. Leighton Rockafellow Sr has been a Certified Specialist In Injury and Wrongful Death since 1991. Leighton is available to take your calls to explain this further to anyone needing additional information.