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wrongful death and survival

Wrongful Death in Louisiana

Losing a loved one is always an extremely difficult and painful time in one’s life.  The pain is only multiplied when you realize their loss was unnecessary.  Holding the negligent party liable will not ease the profound grief, but it can ensure your family is at least taken care of financially during this most unfortunate journey.

A wrongful death case is similar to a personal injury claim, with the exception that the victim is no longer with us to assert their rights.  Instead, his or her heirs file the claim themselves for the damages they now have due to the lost loved one.  Per La. Civ. Code art. 2325.2, the following categories of family members may bring a wrongful death claim within one year of the date of death after a fatal injury:

  • The surviving spouse and children together if both exist, or just the spouse or just the children if one or the other does not exist;
  • If there are no spouse or children, then the parents or parent of the victim;
  • Siblings are next in the absence of a spouse, children, or parents; 
  • Grandparents may bring the action if none of the above are present;
  • Finally, art. 2325.2(C) states that the right to bring the claim is heritable, meaning that the estate representatives may bring the action if the succession is opened by someone other than the above individuals. 

It can be challenging to prove a wrongful death occurred due to someone else’s negligence.  To prove wrongful death, one must establish that the defendant owed a duty of care to the victim; that the defendant breached that duty of care; that the defendant’s negligent actions contributed to the victim’s death; and the victim’s death led to  losses or damages.  Damages can be economic and/or non-economic losses.  Economic damages include burial and funeral costs, loss of future income, loss of benefits, loss of household services, and loss of inheritance.  Non-economic damages include mental anguish of the family, loss of companionship, loss of guidance, loss of consortium, loss of care, and loss of emotional support.  In some cases, a jury may award punitive damages which are designed to punish the grossly negligent party for the loss of your loved one.


In Louisiana, the surviving family members of the victim may also bring a court action for the losses their loved one would have had for his injury had he or she not succumbed to those injuries.  Whereas a wrongful death claim is for the damages of the family, a survival action is for the damages the victim suffered prior to his or her untimely death.  

The categories of people who may bring the action are identical to a wrongful death claim, per La. Civ. Code art. 2315.1.  Wrongful death and survival actions are usually brought together in the same suit since the categories of proper family members are the same.  The burden of proof is similar as well and will essentially be the same as other personal injury claims since a survival action is basically the victim’s personal injury case brought after his or her passing.  Damages include medical expenses incurred before death, property damage associated with the accident, the victim’s pain and suffering, lost wages until death, the victim’s mental anguish, loss of enjoyment of life, and anything else the victim may have been entitled to in their personal injury claim had he or she survived.  

The personal injury lawyers at BowesPetkovich & Palmer, LLC are experienced at representing families after a loved one is tragically killed in the New Orleans area and across Louisiana.  Call us today for a free consultation.

Other Types of Injury Cases We Handle:

Automobile Accidents
Commercial Trucking Accidents
Motorcycle Accidents
Work Accidents
Dog Bites
Slip and Fall
Premises Liability
Product Liability
Medical Malpractice


Bowes, Petkovich & Palmer, LLC

2550 Belle Chasse Highway
Suite 200

Gretna, LA 70053


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504-368-2900 (fax)


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