The Survival Action: Damages for Pre-Death Pain & Suffering

Posted 4 years 74 days ago ago by hesterd@ksbrlaw.com

The survival action compensates a victim’s family for any pain and suffering of the victim between the time the injury occurred and the time of the victim’s death.  La. Civil Code art. 2315.1.  Damages for the survival action are due if there is even the slightest evidence of pain and suffering, mental or physical, on the part of the decedent.  The cases describe this threshold as a “scintilla of evidence.”  Whether the decedent suffered is a factual question, and considerations include the severity and duration of the pain, any pre-impact fear, and other fright, fear, or suffering sustained by the decedent up to the moment of death.  Cavalier v. State, 2208-0561 (La. App. 1st Cir. 9/12/08), 994 So. 2d 635, 645; Leary v. State Farm Mut. Auto. Ins. Co., 2007-1184 (La. App. 3d Cir. 3/5/08), 978 So. 2d 1094, 1098; Harvey v. State, 2000-1877 (La. App. 4th Cir. 9/26/01), 799 So. 2d 569, 577; Simmons v. Christus Schumpert Med. Center, 45,908 (La. App. 2d Cir. 6/15/11), 71 So. 3d 407, 427–28.


Several Louisiana cases allow $50,000 for just seconds, or a minute or two of consciousness.


Cavalier v. State, 2208-0561 (La. App. 1st Cir. 9/12/08), 994 So. 2d 635: $50,000 for pre-impact mental suffering.  Witnesses observed the victim’s car hydroplane and spin several times.  The victim likely would have been fearful when his car spun out of control and he realized the danger of the situation.  Death occurred within seconds of the impact.


Barthel v. State, 2004-1619 (La. App. 1st Cir. 6/10/05), 917 So. 2d 15: $50,000 for physical suffering.  A witness who tended to the victim heard the victim moan, felt her cheek quiver, and watched the color drain from her face.


James v. Jones, 99-966 (La. App. 5th Cir. 3/22/00), 759 So. 2d 896: $50,000 where death was swift, but the victim would have been aware of the oncoming vehicle in the seconds before it crashed into the victim’s vehicle.


In Ruttley v. Lee, 99-1130 (La. App. 5th Cir. 5/17/00), 761 So. 2d 777, the court compensated $150,000 for a woman who was breathing lightly just before her death; no one saw her move or make noise.  The same compensation was granted in Cox v. Moore, 2001-878 (La. App. 3d Cir. 12/12/01), 805 So. 2d 277 for an eleven year old girl who died at the scene and squeezed a hand one time before she died.  The victim in Barton v. Hines, 2004-329 (La. App. 3d Cir. 10/6/04), 884 So. 2d 1214 died from drowning in an oxidation pond, and the autopsy report stated the victim’s lungs were “wet heavy,” indicating he was still alive during the drowning.  The court awarded the victim’s mother $200,000.


Our firm prosecuted a trucking case resulting in the largest compensation for an acute survival claim of which we are aware, $800,000.  Wingfield v. State, 2001-2668 (La. App. 1st Cir 11/8/02), 835 So. 2d 785, writ denied, 2003-0313 (La. 5/30/03), cert. denied, 540 U.S. 950 (2003).  In the wreck, Mr. Wingfield suffered a complete amputation of one leg and the other crushed and partially amputated, chest injuries, and massive bleeding throughout his body.  While lying on the highway awaiting ambulance transport, he was conscious and asked about the condition of his stepson who had been driving the truck.  Mr. Wingfield survived approximately three hours and was conscious for much of that time.


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