Annotations

• 1. Cause of action which survives

• 2. Applicability of section

• 3. Miscellaneous

• 1. Cause of action which survives

• Despite the language of this section and section 25-1402 which suggests that all pending actions other than those specifically listed in the statutes survive the death of a party, Nebraska case law has limited the list of those actions which survive to exclude those which involve purely personal rights. Sherman v. Neth, 283 Neb. 895, 813 N.W.2d 501 (2012).

• Under the provisions of this section, conscious prefatal-injury fear and apprehension of impending death survives a decedent's death as an element of decedent's personal injury action and inures to the benefit of decedent's estate. Nelson v. Dolan, 230 Neb. 848, 434 N.W.2d 25 (1989).

• In an action seeking damages for injuries sustained in an automobile collision, the plaintiff's cause of action survives and does not abate on his death. Spradlin v. Myers, 200 Neb. 559, 264 N.W.2d 658 (1978).

• Cause of action to establish trust survived death of party to trust agreement. Workman v. Workman, 167 Neb. 857, 95 N.W.2d 186 (1959).

• Action for injuries may be brought against estate of decedent whose negligence caused injury. In re Grainger's Estate, 121 Neb. 338, 237 N.W. 153 (1931), 78 A.L.R. 597 (1931).

• Where, from nature of case, cause of action can continue, as in actions based on negligence, it will not abate, though not mentioned in this section. Levin v. Muser, 107 Neb. 230, 185 N.W. 431 (1921).

• Husband's action for loss of services and expenses on account of tort to wife survives, and is assignable. Forbes v. Omaha, 79 Neb. 6, 112 N.W. 326 (1907).

• A pending action for personal injuries occasioned by negligence does not abate by the death of the plaintiff. Webster v. City of Hastings, 59 Neb. 563, 81 N.W. 510 (1900).

• As an element of a decedent's personal injury action, conscious prefatal-injury fear and apprehension of impending death survives a decedent's death, under the provisions of this section, and inures to the benefit of such decedent's estate. Scott v. Khan, 18 Neb. App. 600, 790 N.W.2d 9 (2010).

• A claim for attorney's fees is saved by Nebraska's survival statute. Herrera v. Valentine, 653 F.2d 1220 (8th Cir. 1981).

• 2. Applicability of section

• Survivorship statutes merely preserve and continue the right of action which the decedent had prior to his death and do not create a new cause of action. Thus, where wrongful act results in instantaneous death, no cause of action in the deceased ever comes into being and none can survive. A cause of action which survives under this section may be joined with a wrongful death action; however, no recovery for loss of earnings may be had except those which may be recovered under the wrongful death action. Rhein v. Caterpillar Tractor Co., 210 Neb. 321, 314 N.W.2d 19 (1982).

• 3. Miscellaneous

• A survival claim is governed by the 4-year residual statute of limitations for tortious conduct, rather than the 2-year statute of limitations applicable to wrongful death claims. Corona de Camargo v. Schon, 278 Neb. 1045, 776 N.W.2d 1 (2009).

• As a general rule, a cause of action may be assigned if the action would, on the death of the assignor, survive to the decedent's legal representative under this section. Kimco Addition v. Lower Platte South N.R.D., 232 Neb. 289, 440 N.W.2d 456 (1989).

• Where action did not abate, administrator may recover all damages that deceased could have recovered if he had survived, including loss of earning power. Murray v. Omaha Transfer Co., 98 Neb. 482, 153 N.W. 488 (1915), affirming 95 Neb. 175, 145 N.W. 360 (1914).

• A survival action is personal to the decedent for damages suffered by the decedent between the wrongful act and his or her death, and recovery for such damage belongs to the decedent's estate and is administered as an estate asset. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020).

• A wrongful death action and a survival action are two distinct causes of action which may be brought by a decedent's personal representative. Although they are frequently joined in a single action, they are conceptually separate. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020).

• Although damages for pain and suffering may be difficult to compute, that cannot preclude the entry of damages where they are appropriate as discernible by sufficient evidence. The amount of damages is a matter solely for the fact finder. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020).

• An action under Nebraska's survival statute is the continuance of the decedent's own right of action, which he or she possessed prior to his or her death. The survival action is brought on behalf of the decedent's estate and encompasses the decedent's claim for predeath pain and suffering, medical expenses, funeral and burial expenses, and any loss of earnings sustained by the decedent, from the time of the injury up until his or her death. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020).

• The same individuals may stand to recover in both a wrongful death and a survival action, as the decedent's next of kin may also be beneficiaries of a survival claim under the decedent's will or the laws of intestate succession. In re Estate of McConnell, 28 Neb. App. 303, 943 N.W.2d 722 (2020).