When a person dies after an accident, the amount of suffering they sustained and the economic losses incurred while they were still alive can be recovered through a survival action. The legal challenges of these lawsuits are numerous, which is why families typically retain a compassionate survival action attorney to assist them. Before filing suit against a potential defendant, it is important to understand the survival action case process in Cicero.

First Steps in Initiating a Survival Action

In order to initiate a survival action, the person who suffered the injury must first have passed away. If a lawsuit is filed before they pass away, it is not considered a survival action but rather a routine personal injury case. If the individual passes away before a lawsuit is filed, or if they pass away while a lawsuit is pending, then it becomes a survival action along with a wrongful death action.

In addition to filing a legal case for a survival action, it is typical to file an accompanying probate case. Survival actions can be extremely complicated from a legal standpoint, and speaking with a Cicero lawyer who has managed the case process in the past is essential.

Establishing Liability

The distinction between survival actions, wrongful death actions, and all other personal injury cases relies mostly on the damages being sought. A lawyer must prove liability in a survival action in the same manner they would any other type of case. If a car accident results in a fatality, they need to prove that the other driver was responsible for the accident in order to make a recovery for survival damages. If it is a medical malpractice case, they must prove that the doctor or other medical caregiver was liable.

Under the law, if a party is negligent and causes injury to another, they are considered liable for those damages, and whatever losses are related to the underlying injury are recoverable as damages. Accidents need not be 100 percent the fault of a single person, it may be a combination of several people’s fault, which triggers the application of contributory negligence.

Civil Court vs. Private Negotiation

It is unusual to settle survival actions out of court. There needs to be some court involvement, even if it is just a matter of approving the settlement. Private negotiations can take place and come to a resolution, but it would still require some action from a civil court. If there is a dispute about liability for the extent of the damages, then a civil court action is much more likely. The case process for most survival actions in Cicero is that they will ultimately settle without going to trial.

In the past, there did not used to be the option of recovering damages after someone’s death. The law has changed and now allows injured individuals to make a recovery even if they pass away. In balancing the factors between whether a defendant should be financially responsible for their negligence, or whether to compensate the family members for the damages, is a decision which the courts have had to make. A survival action allows the representatives of the estate to make a recovery for the damages under the survival act.

Expected Length of a Survival Action

There is not a typical timeframe for how long it takes for a survival action to resolve. If there are relatively few disputes or issues, it may take a few months. If it is hotly contested, it may take several years through the court process.

A lawyer will attempt to resolve a survival action as quickly as possible, since they do not get paid until the case is resolved. However, there are many internal constraints within the court system which have a tendency to drag cases out.

Learn More About the Survival Action Case Process from a Cicero Attorney

A wrongful death case has to be a collaborative effort between the lawyer and the surviving family members. Although a lawyer assists in the legal process, the case still belongs to the family. Family members will be in the best position to provide evidence and testimony that the lawyer uses to prove the strongest case. Contact an attorney to learn more about the survival action case process in Cicero.