§663-7 Survival of cause of action. A
cause of action arising out of a wrongful act, neglect, or default, except a
cause of action for defamation or malicious prosecution, shall not be
extinguished by reason of the death of the injured person. The cause of action
shall survive in favor of the legal representative of the person and any
damages recovered shall form part of the estate of the deceased. [L 1955, c
205, §2; RL 1955, §246-6; HRS §663-7; am L 1972, c 144, §2(f)]
Cross References
Abatement and revival, see chapter 634, pt V.
Probate, claims, see chapter 560.
Case Notes
Recovery by estate of decedent for decedent's pain and
suffering. 245 F. Supp. 981, 1015 (1965), aff'd 381 F.2d 965 (1967).
Because decedent would have had an action for punitive
damages had decedent survived, estate is entitled to recover punitive damages
under this section. 551 F. Supp. 110 (1982).
Recovery for decedent's conscious pain and suffering,
discussed. 823 F. Supp. 778 (1993).
In action under Federal Tort Claims Act, where plaintiffs
argued, inter alia, that remaining individual plaintiffs were all legally
entitled to assert a survivorship claim on behalf of estate under this section
because they were all deceased's heirs, remaining individual plaintiffs' status
as heirs did not, by itself, entitle them to be legal representatives of
estate. 125 F. Supp. 2d 1243 (2000).
Probable earnings of decedent during decedent's lost years
are not a proper item of damages. 54 H. 231, 505 P.2d 1169 (1973). But for
present statutory rule, see §663-8.
A person named in will of decedent to be the executrix deemed
"legal representative" and would have been proper person to be
substituted for decedent in action brought by decedent. 60 H. 125, 588 P.2d
416 (1978).
As murder victim would have had a claim for punitive damages
had murder victim survived, under this section, victim's claim for punitive
damages survived victim's death; as this claim survives victim's death,
punitive damages are not recoverable in an action under §663-3. 87 H. 273
(App.), 954 P.2d 652 (1998).
Where murder victim would have had cause of action for loss
of enjoyment of life and other nonpecuniary losses under §663-8.5 had murder
victim survived, under this section, victim's claim survived victim's death and
victim's estate may sue for such damages. 87 H. 273 (App.), 954 P.2d 652
(1998).
In a claim for wrongful death of a fetus, plaintiff was not
foreclosed from being awarded damages under this section, even though
plaintiff's complaint did not mention this section. A liberal reading of
plaintiff's complaint would put defendant on notice that plaintiff was bringing
forth a claim on behalf of the fetus's estate, the claim arose out of
defendant's negligence resulting in the fetus's death, and plaintiff would be
pursuing general damages in an amount to be proven at trial, which could include
damages for the loss of enjoyment of life. 137 H. 179 (App.), 366 P.3d 1058
(2016).
Notes of Decisions
Cited in
22
cases (
6 in the last 5 years), 1973–2024 · leading case:
Castro v. Melchor., 414 P.3d 53 (Haw. 2018).
Castro v. Melchor., 414 P.3d 53 (Haw. 2018).
· cites it 85× “After the evidentiary portion of the trial was completed, Castro filed a memorandum regarding damages with the court.”
Greene v. Texeira, 505 P.2d 1169 (Haw. 1973).
· cites it 64× “The jury awarded the mother $30,000 under the Wrongful Death Act, HRS § 663-3, and $5,000 under the Survival Statute, HRS § 663-7. Judgment was entered in accordance with the verdicts on April 30, 1970.”
Ozaki v. Ass'n of Apt. Owners of Discovery Bay, 954 P.2d 652 (Haw. App. 1998).
· cites it 30× “The determination of these issues, however, requires resort to the survival statute, 33 HRS § 663-7 (1993), which governs recovery for wrongful death by the estate of a decedent and the wrongful death statute, HRS § 663-3, which pertains to such recovery by the decedent’s…”
TMJ Hawaii, Inc. v. Nippon Trust Bank, 153 P.3d 444 (Haw. 2007).
· cites it 9× “Subsequent to the Alameda decision, the legislature enacted HRS § 663-7, see 1955 Haw. Sess. L. Act 205, § 2, at 185, which states as follows: § 663-7 Survival of cause of action.”
Roxas v. Marcos, 969 P.2d 1209 (Haw. 1998).
· cites it 4× “In Bagalay , this court construed the former version of HRS § 663-7 (1955), which allowed survival of actions “in favor of the legal representative” of the decedent party.”
Bagalay v. Lahaina Restoration Found., 588 P.2d 416 (Haw. 1978).
· cites it 8× “Under the provisions of HRS § 663-7, 5 appellant’s cause of *136 action was not extinguished by his death, but survived in favor of his “legal representative.”
Agae v. United States, 125 F. Supp. 2d 1243 (D. Haw. 2000).
· cites it 20× “3 (c) and Haw.Rev.Stat. § 663-7. Plaintiffs concede that: (1) the United States is entitled to dismissal of claims by the eleven individual Plaintiffs who failed to file administrative claims; and (2) the Estate is not asserting a wrongful death claim.”
Tancredi v. Dive Makai Charters, 823 F. Supp. 778 (D. Haw. 1993).
· cites it 5× “§ 663-3, and Hawaii’s survivor statutes, Haw.Rev.Stat. §§ 663-7 and 663-8. Defendants have asserted that admiralty jurisdiction pursuant to 28 U.”
Castro v. Melchor, 366 P.3d 1058 (Haw. App. 2016).
· cites it 11× “” In addition, under HRS § 663-7 (1993): A cause of action arising out of a wrongful act .”
Bertelmann v. Taas Assocs., 735 P.2d 930 (Haw. 1987).
· cites it 2× “5 Under HRS § 663-7 (1985), only those causes of action the decedent possessed survive for his or her estate.”
Jenkins v. Whittaker Corp., 551 F. Supp. 110 (D. Haw. 1982).
· cites it 3× “§ 663-7. Plaintiffs assert that Whittaker has confused this action for punitive damages under the Hawaii survival statute with an action under the Hawaii Wrongful Death Act.”
Est. of Sanders v. Jones, 362 F. Supp. 3d 463 (W.D. Tenn. 2019).
“, Haw. Rev. Stat. § 663-7 ("A cause of action arising out of a wrongful act, neglect, or default, except a cause of action for .”
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