The State of New Jersey allows the victim-decedent’s estate to sue the wrongdoer for his or her conscious pain and suffering experienced as a result of the accident, even if the victim-decedent was only alive for a brief period of time.  Even more, New Jersey’s statutory Survival Action, codified in N.J.S.A. 2A:15-3, seeks to compensate the estate for not only the conscious pain and suffering of the decedent, but also for (1) the loss of earnings by the deceased prior to his death; (2) funeral expenses; and (3) burial expenses.

Take for example “Mr. Jones,” who suffered severe injuries, including permanent quadriplegia, as a result of a tragic motor vehicle accident.  On that fatal accident day, Mr. Jones was operating his motorcycle on a county road, when the tortfeasing driver, Mr. Liden, made an improper left turn with his automobile and collided with Mr. Jones’s motorcycle.

As a result of the impact, Mr. Jones was ejected off the motorcycle and came to rest along the curbside of the county road.  He was transferred by Medivac helicopter with egregious injuries to the hospital. There, Mr. Jones  was diagnosed with a devastating C5 and C6 fracture dislocation with obliteration of the spinal canal, requiring open surgical fixation with plates and screws. Mr. Jones also suffered a T5 lamina fracture, spinal shock, deep venous thrombosis, and respiratory failure. Due to the nature and extent of his spinal cord injuries, Mr. Jones sustained permanent paralysis, with no feeling, no movement, and no ability to control his bodily functions from the chest down.

After a grueling period of thirteen months suffering as a quadriplegic, Mr. Jones ultimately succumbed to the injuries he sustained in the tragic accident and died. Mr. Jones was 70 years old at the time of his death.

Upon his death, Mr. Jones left behind two next of kin, including Leslie Jones, his lawful spouse for forty-one years, and Kristian Jones, his lawful and biological son.  Kristian was 25 years of age at the time of Mr. Jones’s death.

Prior to the subject motor vehicle accident, Mr. Jones epitomized energy and passion, having a great love of life and a captivating persona. Mr. Jones had a genuine passion for outdoor activities and maintained a healthy lifestyle. He devoted his free time to working out and, as such, was in excellent physical condition. Even in his late 60’s, Mr. Jones was dedicated to his career, earned a substantial income, and was the sole provider for his wife, Leslie.

To say the least, the motor vehicle accident was a life-changing tragedy for Mr. Jones. This accident not only assassinated his physiologic functionality and cast him a prisoner of his own body, but also perpetuated chronic, never-ending mental anguish and apprehension of impending death in an otherwise very alert, aware, and conscientious man.

While Mr. Jones’s injuries appear shocking enough on paper, the impact they had on him during the latter part of his life can best be explained as a Pandora’s Box of dread. For instance, it was not only that Mr. Jones had a devastating C5-C6 fracture, it was that this fracture caused him permanent quadriplegia, confined him to a wheelchair and/or a bed, and caused him medically complicated bedsores. Further, it was not only that Mr. Jones had permanent quadriplegia, it was that this permanent state of total paralysis from the chest down caused Mr. Jones  to lose all control over his bodily functions, his ability to move, and his ability to feel. The loss of bodily functions meant, at least in part, that Mr. Jones had a colostomy bag and a catheter implanted into his body to artificially perform the job that his bowel had naturally once done. Even more, the devastating C5-C6 fracture had caused a severance between his brain and the rest of his body, necessitating a pacemaker just to keep his heart beating and his blood pumping.

Each and every day, from the instant that Mr. Liden’s automobile violently struck Mr. Jones to the moment of Mr. Jones’s death, Mr. Jones became incarcerated in his own body and suffered agonizing and unyielding pain. Even more, each and every hospital admission was an amplification of Mr. Jones’s everyday pain and suffering and a relentless reminder of impending doom. Certainly, Mr. Jones’s everyday pain and suffering and his loss of enjoyment of life has significant value and is compensable in a survival action, as is each and every hospital admission of magnified pain and suffering.

While the accident destroyed the quality of Mr. Jones’s life and cast him a prisoner of his own body, it left intact his sharp alertness, mental cognitions, and intellectual brilliance.   As such, Mr. Jones was painstakingly aware of his horrific injuries, of his grave handicaps, of his shattered future, and of his battles with death. It is Mr. Jones’s acute awareness that multiplies exponentially his everyday pain, suffering, and loss of enjoyment of life and substantially increases the value of the conscious pain and suffering claim.

Survival Action:  Conscious Pain and Suffering

Our Appellate Division has recognized that monetary damages can be rewarded for conscious pain and suffering even if the decedent was alive for a brief moment. Clark v. University Hospital-UMDNJ, 390 N.J.Super. 108, 914 A.2d 838 (App. Div. 2006); see also Tirrell v. Navistar Int’l, 248 N.J.Super. 390, 591 A.2d 643 (App. Div. 1991). For example, in Clark v. University Hospital-UMDNJ, the decedent sustained serious injuries in an automobile accident and was transported to University of Medicine and Dentistry of New Jersey (“UMDNJ”). Plaintiff alleged that the UMDNJ doctors failed to properly drain the gastric contents from the decedent’s stomach, causing him to choke to death on his own vomit during a period of four minutes. Id. at 111. At trial, the jury awarded Plaintiff $2 million for the decedent’s conscious pain and suffering during that four minute period of time. Id. The Appellate Division upheld the jury’s verdict of $2 million for conscious pain and suffering, finding that the decedent’s award was not excessive in light of his suffering, albeit brief. Id. at 119.

In the instant matter, Mr. Jones was alive for thirteen months (significantly longer than the decedent in Clark), each and every day of which he was captive inside his body, was ravaged by consuming pain, and was apprised and alert of his impending death. He suffered every minute of every day in those thirteen months, and as such, his conscious pain and suffering claim has considerable value.

Survival Action:  Lost Wages

New Jersey also allows plaintiffs to be compensated for any earnings lost as a result of injuries caused by defendant’s negligence or other wrongdoing. Smith v. Red Top Taxicab Corp., 111 N.J.L. 439, 443 (E. & A. 1933). In this case, before the subject motor vehicle accident, Mr. Jones derived a substantial seven-figure income from his two separate and unique businesses.  As a result of the injuries that Mr. Jones sustained in the subject accident, however, he was no longer able to manage the business at any level. Resultantly, in this survival action, Mr. Jones’s estate would have a claim for last wages that would be in the high six figure or low seven figure range.


Mr. Jones’s estate can also bring a wrongful death action against Mr. Liden, the tortious actor. New Jersey’s statutory action for Wrongful Death is codified in N.J.S.A. 2A:31-1 to -6. Notably, N.J.S.A. 2A:31-5, Assessment of Damages by Jury, provides as follows:

In every action brought under the provisions of this chapter the jury may give such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased, to the persons entitled to any intestate personal property of the decedent in accordance with the provisions of N.J.S.A. 2A:31-4.

N.J.S.A. 2A:31-5. Therefore, statutory law provides that decedent’s next of kin are entitled to the following damages:

(1) pecuniary injuries resulting from wrongful death, including:

  • Loss of inheritance
  • Loss of companionship
  • Loss of household services
  • Loss of clerical services
  • Loss of guidance
  • Loss of counsel
  • Loss of advice

(2) hospital expenses

(3) medical expenses

(4) funeral expenses

 See Green v. Bittner, 85 N.J. 1, 424 A.2d 210 (1980).

Interpretive case law clarifies that the primary factors in determining whether the next of kin is entitled to recover include: (1) whether decedent had actually made contributions to the next of kin; and (2) whether the next of kin was in a situation of economic dependency. Capone v. Norton, 8 N.J. 54, 83 A.2d 710 (1951); see also Shutka v. Pennsylvania Railroad Co., 74 N.J.Super. 381, 181 A.2d 400 (1962), certif. denied, 38 N.J. 183 A.2d 88.

Mr. Jones, together with his wife Leslie, owned four real estate properties.  Moreover, prior to his death, Leslie was entirely financially dependent upon Mr. Jones. Accordingly, Leslie is entitled to the actual contributions which Mr. Jones would have made but for his wrongful death.

Leslie is also entitled to recover for loss of inheritance, loss of companionship, loss of household services, loss of clerical services, loss of guidance, loss of counsel, and loss of advice.

Moreover, Mr. Jones financially supported his son, Kristian, and as such, Kristian was economically dependent upon Mr. Jones. In light of these facts, Kristian is entitled to recover the actual contributions that Mr. Jones would have made to Kyle for the duration of his expected life but for the wrongful death.

Moreover, Kristian is entitled to recover for loss of inheritance, loss of companionship, loss of guidance, loss of counsel, and loss of advice.

As illustrated by the above set of facts, a decedent’s estate could bring both a survival action and a wrongful death action against the wrongdoer.  In this State, the wrongful death statute allow the estate to be awarded damages for the beneficiaries of the deceased for pecuniary losses.  On the other hand, the survival laws allow the estate to be awarded damages that the decedent could have recovered if he/she had not died, such as pain and suffering and lost wages.

– Kristina C. Ivtindzioski, Esq.