Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Wrongful Death – Survival of Actions.

Wrongful Death-Survival of Actions-Statutes

See Va. Code § 8.01-25 indicating that if injured party institutes suit and thereafter dies from injuries, that action shall be amended in accord with Wrongful Death Act. Every cause of action recognized in Virginia survives death of plaintiff and/or defendant. Death applies to termination of entity.

Wrongful Death-Survival of Actions-Cases

2009 Centra Health, Inc. v. Mullins, 277 Va. 59, 670 S.E.2d 708.
In this medical malpractice action, trial court properly refused to require administrators of estate to elect between wrongful death and survival claim. Election between these remedies is required only at a time when the record is sufficiently established that the personal injuries and the death arose from the same cause. In this case, both claims were submitted to the jury. Where there is any doubt as to when compelling an election would be proper, bifurcation is the most practical means to assure that each party receives a fair opportunity to present their case to the jury without prejudice to the other.

1989 Lucas v. HCMF Corp., 238 Va. 446, 384 S.E.2d 92.
Plaintiff cannot recover damages for both personal injury and wrongful death based on treatment at this one facility. Where injuries cause death, then recovery must be sought under wrongful death act.

1971 Bagley v. Weaver, 211 Va. 779, 180 S.E.2d 686.
Former Va. Code § 8.628.1 [now § 8.01-25] permits recovery for mental anguish, pain and suffering of deceased and injuries and loss generally sustained by him and his estate. Plaintiff’s decedent injured in auto accident and subsequently died from unrelated causes.

1971 Travellers’ Ins. Co. v. Turner, 211 Va. 552, 178 S.E.2d 503.
Discussion of what types of claims survive.

1970 Edwards v. Jackson, 210 Va. 450, 171 S.E.2d 854.
Brief discussion of relationship between survival statute and Wrongful Death Act. No clear statement as to whether recovery is allowed under both statutes.

1954 Richmond Redev. & Hous. Auth. v. Laburnum Constr. Co., 195 Va. 827, 80 S.E.2d 574.
Virginia Code § 64-135 [now § 64.1-145] provides for survival of action for damage to property only where damage is direct result of alleged wrong directly affecting person only. Consequential or indirect damages discussed.

1953 Seymour & Burford Corp. v. Richardson, 194 Va. 709, 75 S.E.2d 77.
Where plaintiff died for reasons unrelated to injuries after having instituted personal injury action, then recovery for mental anguish, pain and suffering not allowed under Va. Code § 8.628.1 [now § 8.01-25]. This prohibition applies regardless of whether action initiated by plaintiff prior to death, or by personal representative after death. If death results from injury and suit has already been filed, pleadings are required to be amended and case proceeded with as if brought under wrongful death statutes. In such case, there can be no recovery for mental anguish, pain, or suffering of decedent.

1949 Hoffman v. Stuart, 188 Va. 785, 51 S.E.2d 239.
Cause of action of injured party while alive is same cause of action that passes to personal representative. Where injured party sued in his lifetime, and after his death, action was revived in name of his administrator, and final adjudication entered, personal representative could not then maintain separate action for death.

1946 Street v. Consumers Mining Corp., 185 Va. 561, 39 S.E.2d 271.
Cause of action giving right of action for wrongful death is tort which produces death and this is same cause of action for decedent’s injuries and as such, subject to its infirmities as actionable cause. Cause of action of injured party while alive is same cause of action that passes do to personal representative.

For more information on wrongful death see the pages on Wikipedia|