§ 71.021.Survival of Cause of Action

The survival action, and it works in both directions.

A cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person or because of the death of a person liable for the injury.

The action survives to and in favor of the heirs, legal representatives, and estate of the injured person, and survives against the liable person and that person's legal representatives. The suit may be instituted and prosecuted as if the liable person were alive.

At common law a personal injury action died with either party. This section reverses that on both sides — the claim outlives the claimant and the defendant alike.

Note the breadth of what survives: injury to the health, reputation, or person. Reputation is expressly included, so a defamation claim survives the death of the person defamed.

The survival claim is the decedent's own. It compensates what the decedent suffered before death — pain, mental anguish, medical expenses, lost earnings — and belongs to the estate. That distinguishes it from the wrongful death claim, which belongs to the survivors and compensates their losses.

Two consequences follow from that ownership. Survival damages are subject to the decedent's debts, unlike wrongful death damages. And a survival claim exists even where the death was unrelated to the injury, since it is the decedent's unresolved claim.