Wrongful Death vs. Survival Actions in Oregon: Key Differences

Two statutes after a fatal crash

When a car or truck crash in Oregon ends in a death, two statutes in ORS chapter 30 can come into play. ORS 30.020 provides the basis for a wrongful-death action. ORS 30.075 is referred to as the survival statute.¹ Both allow an action to go forward after a person has died, but they are written for different situations. According to the Oregon Supreme Court, "the difference between claims under the wrongful death and survival statutes turns on whether the wrongful conduct is alleged to have caused the decedent’s death."¹

This post explains what each statute says, who brings each claim, and what each covers. Broader overviews are on the pages for Oregon wrongful death, car accidents and trucking accidents.

The wrongful-death action: ORS 30.020

ORS 30.020(1) begins: "When the death of a person is caused by the wrongful act or omission of another …"² In that situation, the personal representative of the decedent (the person who died) may maintain an action against the wrongdoer, but only "if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission."²

The personal representative brings the action for the benefit of others. The statute names the decedent's surviving spouse, surviving children and surviving parents; other individuals, if any, who under the law of intestate succession of the state of the decedent's domicile would be entitled to inherit the decedent's personal property; and any stepchild or stepparent, whether or not that person would be entitled to inherit.² A separate post covers who can file and who recovers in more detail.

ORS 30.020(2) lists five categories of damages that may be awarded. Four of them are: reasonable charges necessarily incurred for doctors' services, hospital services, nursing services, other medical services, burial services and memorial services rendered for the decedent; compensation for pecuniary loss to the decedent's estate; compensation to the decedent's spouse, children, stepchildren, stepparents and parents "for pecuniary loss and for loss of the society, companionship and services of the decedent"; and punitive damages, if any, that the decedent would have been entitled to recover from the wrongdoer had the decedent lived, separately stated in the finding or verdict.² The fifth, in paragraph (b), matters most for this post. It is an amount that "Would justly, fairly and reasonably have compensated the decedent for disability, pain, suffering and loss of income during the period between injury to the decedent and the decedent’s death".²

How a recovery is then divided is governed by ORS 30.030, which provides that damages accepted or recovered by the personal representative under ORS 30.020 "shall be distributed in the manner prescribed in this section."³ The wrongful death distribution page walks through that order.

The survival claim: ORS 30.075

The survival statute starts from an older rule. As the Oregon Supreme Court explained, "At common law, an action for bodily injury abated upon the death of the injured party."¹ The court described the 1965 enactment of ORS 30.075 as having "ended the prohibition on bringing or continuing a personal injury action after the injured person’s death …"¹

ORS 30.075(1) changes that rule for injury claims. It provides: "Causes of action arising out of injuries to a person, caused by the wrongful act or omission of another, shall not abate upon the death of the injured person, and the personal representatives of the decedent may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission."⁴

So the personal representative brings this claim too. The Supreme Court has described the survival statute as allowing the personal representative to maintain an action "on the decedent’s behalf".¹ It has also noted that "the survival statute does not specify the types of damages that may be recoverable in a survival cause of action."¹ The statute does address attorney fees. ORS 30.075(2) provides: "In any such action the court may award to the prevailing party, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees."⁴

Which statute applies depends on what caused the death

ORS 30.075(3) addresses how the two statutes interact. It provides: "Subsection (2) of this section does not apply to an action for damages arising out of injuries that result in death. If an action for wrongful death under ORS 30.020 is brought, recovery of damages for disability, pain, suffering and loss of income during the period between injury to the decedent and the resulting death of the decedent may only be recovered in the wrongful death action, and the provisions of subsection (2) of this section are not applicable to the recovery."⁴

The Oregon Supreme Court read the two statutes together in Martineau v. McKenzie-Willamette Medical Center, 371 Or 247, 533 P3d 1, adh'd to as modified on recons, 371 Or 408, 537 P3d 542 (2023).¹⁵ Martineau arose from a death alleged to have been caused by medical negligence, not a crash, but one question it answered was whether a lost-chance claim could proceed under the survival statute, ORS 30.075, separately from the wrongful-death claim under ORS 30.020, and answering it required the court to explain how the two statutes relate. The court concluded that both statutes "were intended to remove death as a bar to bringing or continuing an action in two different situations: (1) When the defendant’s wrongful conduct allegedly caused a deceased person’s injuries—but not that person’s death—the personal representative may bring a survival action under ORS 30.075 after the injured person’s death; and (2) when the defendant’s wrongful conduct allegedly caused the person’s death, the personal representative may bring a wrongful death action under ORS 30.020, but not a survival action under ORS 30.075."¹

The court also said that whether a claim after a death belongs under ORS 30.020, ORS 30.075 or both "depends on the allegations in the complaint."¹ To illustrate the survival side, it described an earlier case in which a person was injured while getting off a bus and died a year later "from causes unrelated to the bus accident." That claim was brought under the survival statute, not the wrongful-death statute.¹

How this maps onto a crash

Read together, the statutes and Martineau point to three general patterns:

• Crash injuries alleged to have caused the death. Under Martineau, the personal representative may bring a wrongful-death action under ORS 30.020, but not a survival action under ORS 30.075.¹ If a wrongful-death action is brought, ORS 30.075(3) provides that damages for the decedent's disability, pain, suffering and loss of income between the injury and the death may only be recovered in that action, and the survival statute's attorney-fee provision does not apply to that recovery.⁴
• Crash injuries, but a death from some other cause. Where the wrongful conduct is alleged to have caused injuries but not the death, the personal representative may bring a survival action under ORS 30.075.¹
• An injured person who had already sued. Martineau explains that if the decedent had brought a personal injury action before the death, and the personal representative alleges that the death was caused by the same wrongful acts or omissions that had caused the injury, the personal representative can maintain that action as a wrongful-death action under ORS 30.020.¹

The time limits are written differently

For a survival claim, ORS 30.075(1) provides: "The action shall be commenced within the limitations established in ORS 12.110 by the injured person and continued by the personal representatives under this section, or within three years by the personal representatives if not commenced prior to death."⁴

For a wrongful-death action, ORS 30.020(1) provides: "The action shall be commenced within three years after the injury causing the death of the decedent is discovered or reasonably should have been discovered by the decedent, by the personal representative or by a person for whose benefit the action may be brought under this section if that person is not the wrongdoer."² It continues: "In no case may an action be commenced later than the earliest of: (a) Three years after the death of the decedent; or (b) The longest of any other period for commencing an action under a statute of ultimate repose that applies to the act or omission causing the injury …"² Three years after the death is an outer bar, not the starting point.

"Injury" in that first sentence has a specific legal meaning. In Gaston v. Parsons, 318 Or 247, 864 P2d 1319 (1994), the Oregon Supreme Court held that "injury," as used in ORS 12.110(4), "consists of three elements: (1) harm; (2) causation; and (3) tortious conduct."⁶ In Logan v. Waterford Operations, LLC, 340 Or App 528 (2025), the Oregon Court of Appeals agreed that the term should be understood the same way in ORS 30.020(1).⁷ Martineau, describing the court's earlier reasoning, said that this part of ORS 30.020(1) "recognizes that a wrongful death action asserted under ORS 30.020(1) may arise for statute of limitations purposes while the decedent is still alive."¹ Logan was a nursing-facility case brought by the decedent's daughter as personal representative. The court concluded that she had actual knowledge of legally cognizable harm by May 23, 2019, and held that the three-year period for her wrongful-death action "began to run no later than that date, not almost two weeks later when her mother died."⁷

Footnotes

1. Martineau v. McKenzie-Willamette Medical Center, 371 Or 247 (2023). https://ojd.contentdm.oclc.org/digital/collection/p17027coll3/id/10006 ↩ ↩² ↩³ ↩⁴ ↩⁵ ↩⁶ ↩⁷ ↩⁸ ↩⁹ ↩¹⁰ ↩¹¹ ↩¹² ↩¹³ ↩¹⁴

2. ORS 30.020 — Action for wrongful death; when commenced; damages. https://www.oregonlegislature.gov/bills_laws/ors/ors030.html ↩ ↩² ↩³ ↩⁴ ↩⁵ ↩⁶ ↩⁷

3. ORS 30.030 — Distribution of damages. https://www.oregonlegislature.gov/bills_laws/ors/ors030.html ↩

4. ORS 30.075 — Procedure upon death of injured person. https://www.oregonlegislature.gov/bills_laws/ors/ors030.html ↩ ↩² ↩³ ↩⁴ ↩⁵

5. Martineau v. McKenzie-Willamette Medical Center, 371 Or 408 (2023) (on reconsideration). https://ojd.contentdm.oclc.org/digital/collection/p17027coll3/id/10159 ↩

6. Gaston v. Parsons, 318 Or 247, 864 P2d 1319 (1994). https://static.case.law/or/318/cases/0247-01.json ↩

7. Logan v. Waterford Operations, LLC, 340 Or App 528 (2025). https://ojd.contentdm.oclc.org/digital/collection/p17027coll5/id/38829 ↩ ↩²