§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).