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The Texas Law About Wrongful Death


The following are some very relevant aspects of the Texas Statutes governing Wrongful Death Claims brought in the State of Texas. 


This article attempts to shed some light on the key provisions of the law, and to explain in non-legalese, what the statute means.



TEXAS CIVIL PRACTICE AND REMEDIES CODE

TITLE 4. LIABILITY IN TORT

CHAPTER 71. WRONGFUL DEATH;  SURVIVAL

SUBCHAPTER A. WRONGFUL DEATH


Sec. 71.002.  CAUSE OF ACTION. 


  1. (a)An action for actual damages arising from an injury that causes an individual's death may be brought if liability exists under this section.

  2. (b)A person is liable for damages arising from an injury that causes an individual's death if the injury was caused by the person's or his agent's or servant's wrongful act, neglect, carelessness, unskillfulness, or default.

  3. (c)A person is liable for damages arising from an injury that causes an individual's death if:


(1) the person is a proprietor, owner, charterer, or hirer of an industrial or public utility plant or of a railroad, street railway, steamboat, stagecoach, or other vehicle for the transportation of goods or passengers;  and


(2) the injury was caused by the person's or his agent's or servant's wrongful act, neglect, carelessness, unskillfulness, or default.


(d) A person is liable for damages arising from an injury that causes an individual's death if:


(1) the person is a receiver, trustee, or other person in charge of or in control of a railroad, street railway, steamboat, stagecoach, or other vehicle for the transportation of goods or passengers, of an industrial or public utility plant, or of other machinery;  and


(2) the injury was caused by:


(A) the person's wrongful act, neglect, carelessness, unskillfulness, or default;


(B) the person's servant's or agent's wrongful act, neglect, carelessness, unfitness, unskillfulness, or default;  or


(C) a bad or unsafe condition of the railroad, street railway, or other machinery under the person's control or operation.


(D) A person is liable for damages arising from an injury that causes an individual's death if:


(1) the person is a receiver, trustee, or other person in charge of or in control of a railroad, street railway, steamboat, stagecoach, or other vehicle for the transportation of goods or passengers, of an industrial or public utility plant, or of other machinery;  and


(2)  the action could have been brought against the owner of the railroad, street railway, or other machinery if he had been acting as operator.



Sec. 71.004.  BENEFITTING FROM AND BRINGING ACTION. 


(a)  An action to recover damages as provided by this subchapter is for the exclusive benefit of the surviving spouse, children, and parents of the deceased.


(b)  The surviving spouse, children, and parents of the deceased may bring the action or one or more of those individuals may bring the action for the benefit of all.


(c)  If none of the individuals entitled to bring an action have begun the action within three calendar months after the death of the injured individual, his executor or administrator shall bring and prosecute the action unless requested not to by all those individuals.



Sec. 71.009.  EXEMPLARY DAMAGES.  When the death is caused by the wilful act or omission or gross negligence of the defendant, exemplary as well as actual damages may be recovered.



Sec. 71.010.  AWARD AND APPORTIONMENT OF DAMAGES. 


(a)  The jury may award damages in an amount proportionate to the injury resulting from the death.


(b)  The damages awarded shall be divided, in shares as found by the jury in its verdict, among the individuals who are entitled to recover and who are alive at that time.


Sec. 71.011.  DAMAGES NOT SUBJECT TO DEBTS.  Damages recovered in an action under this subchapter are not subject to the debts of the deceased.



SUBCHAPTER B. SURVIVAL


Sec. 71.021.  SURVIVAL OF CAUSE OF ACTION. 


(a)  A cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person or because of the death of a person liable for the injury.


(b)  A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person.  The action survives against the liable person and the person's legal representatives.


(c)  The suit may be instituted and prosecuted as if the liable person were alive.

Claims under Texas Law



Wrongful Death and Survival Claims in Texas


When a loved one is killed due to the fault of another person or entity (such as by a drunk driver, a vehicle accident or in a shooting) the family of the deceased may bring a lawsuit against the person or entity that is at fault.  Texas law allows the family to bring a “survival” claim and a “wrongful death” claim simultaneously.



What is a Wrongful Death Claim?


A wrongful death claim may be brought if a person caused a death due to a wrongful act, neglect, carelessness, unskillfulness or default.  The statute provides as follows:


A person is liable for damages arising from an injury that causes an individual's death if the injury was caused by the person's or his agent's or servant's wrongful act, neglect, carelessness, unskillfulness, or default.  (Tex. Civ. Prac. & Rem. Code Ann. § 71.002[b]). 



Who May Bring a Wrongful Death Claim?


The wrongful death statute limits who can bring a wrongful death claim.  Under the Texas Civil Practice and Remedies Code, a wrongful death claim can be brought by the surviving spouse, children, and the parents of the deceased.  The statute provides as follows: 


(a)  An action to recover damages as provided by this subchapter is for the exclusive benefit of the surviving spouse, children, and parents of the deceased.


(b)  The surviving spouse, children, and parents of the deceased may bring the action or one or more of those individuals may bring the action for the benefit of all.  (Texas Civil Practices & Remedies Code Ann. § 71.004[a] & [b]). 


Courts have held that parents who have legally adopted a child may bring a wrongful death claim in the death of the adopted child.  Additionally, a surviving spouse who has remarried after the death of his or her spouse may also bring a claim against the party at fault.  However, the party at fault is entitled to introduce at trial evidence of re-marriage to limit the surviving spouse’s damages. 

Siblings of the deceased do not have the right to bring a wrongful death claim in Texas.


Additionally, the statute provides that if none of the individuals entitled to bring an action have begun the action within three calendar months after the death of the injured individual, his executor or administrator can bring and prosecute the wrongful death action unless requested not to by all those individuals.  (Tex. Civ. Prac. & Rem. Code Ann. § 71.004[c]).

 

The wrongful death statute allows for the recovery of damages for an injury to a person born dead if the “individual injured would have been entitled to bring an action for the injury if the individual had lived or had been born alive.”  (Tex. Civ. Prac. & Rem. Code Ann. § 71.003[a]).  



What is the Statute of Limitations for a Wrongful Death Claim?


Laws called “statutes of limitations” limit the time you have to file a lawsuit after an incident.  In Texas, you must file a wrongful death lawsuit not later than two years from the date of death.  Texas law provides as follows:


A person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person. (Tex. Civ. Prac. & Rem. Code Ann. 16.003 [b]).  Therefore, time is of the essence in prosecuting such claims. 


It is important to note that statute of limitations laws are strictly enforced by courts.  One reason for this is because evidence may be corrupted or may disappear with the passing of time.  Memories of witnesses may fade or companies may purge data relating to the incident from their systems.  Therefore, it is imperative for the attorney to begin working on such cases and gather evidence as close to the time of the occurrence as possible.  Additionally, our judicial system values timely resolution of disputes and the premise that justice delayed is justice denied.  Therefore, one must retain an attorney and file a lawsuit as soon as possible from the date of death. 



What type of Damages are Recoverable under the Wrongful Death Claim?


According to the wrongful death statute, a jury in a wrongful death case may “award damages in an amount proportionate to the injury resulting from the death.”  Tex. Civ. Prac. & Rem. Code Ann. 71.010 (a).  The damages awarded will be divided by the jury “in shares as found by the jury in its verdict, among individuals who are entitled to recover and who are alive at that time.”  (Tex. Civ. Prac. & Rem. Code Ann. 71.010 [b]). 


Any damages recovered under a wrongful death claim are not subject to the debts of the deceased.  Tex. Civ. Prac. & Rem. Code Ann. 71.011. 

In a wrongful death claim, the damages recoverable are those actual damages suffered by the claimants, not those suffered by the decedent.  Damages in an amount “proportionate to the injury resulting from the death” means that the claimants may recover monetary damages for items such as the following:


•Love and companionship;

•Pecuniary Losses or loss of earning capacity;

•Funeral expenses;

•Loss of advice and counsel;

•Loss of services;

•Loss of inheritance;

•Mental anguish/emotional distress;

•Pre-judgment and post judgment Interest;

•Court costs; and

•Punitive damages. 



Decedent’s Fault as a Defense


As with other types of personal injury cases, a defendant in a wrongful death case may claim as a defense that the decedent’s fault caused his own death.  In such cases, a jury may be instructed to assess “proportionate responsibility” or percentage of fault of each party. 


If the decedent’s share of responsibility is determined to be more than 51% by the jury, the claimants cannot recover in the case.  (Tex. Civ. Prac. & Rem. Code § 33.001).  However, if the percentage of fault attributed to the decedent is less than 50%, the claimants are able to recover.  In such cases, however, the court must reduce the total amount of recovery by the percentage of fault attributed to the decedent. 



How is the Survival Claim Different?


In addition to the wrongful death claim, the family of the deceased may also bring a “survival” claim against the party at fault.  You can file both claims simultaneously in a lawsuit. 


In a survival claim, the decedent’s personal injury claims survive in favor of the estate.  The statute clearly state that claims for “personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person or because of the death of a person liable for the injury.”  (Tex. Civ. Prac. & Rem. Code Ann. § 71.021 [a]).  This type of claim addresses the decedent’s losses between the time of injury and death.


Damages recoverable under the survival claim are different than the damages recoverable under the wrongful death claim.  Damages recoverable under the survival claim  include physical pain and mental anguish, medical expenses, and funeral and burial expenses.  The estate may also recover punitive damages, prejudgment and post judgment interest, and court costs. 


Losses sustained by heirs and the representatives of the deceased as a result of death cannot be part of the survival claim.  Therefore, claims such as loss of support, loss of inheritance or future earnings are not recoverable under the survival claim.


A court also will not award damages for physical pain and mental anguish under the survival claim if the decedent died instantly and did not actually experience pain and mental anguish.  At trial, decedent’s estate may prove that the decedent experienced pain prior to death by introducing circumstantial evidence or by expert testimony. 


Unlike the wrongful death claim, heirs other than the spouse, children and parents may be beneficiaries under the survival claim.  It is possible for a sibling or another beneficiary of the decedent’s estate to recover under a survival claim.  Such distribution depends on whether one is an heir to the estate under a will, or under the laws of intestate distribution if the decedent died without a will.  According to the statute, “a personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person. The action survives against the liable person and the person's legal representatives.”  Tex. Civ. Prac. & Rem. Code Ann. § 71.021 (b).


If your loved one has been killed in an accident due to the fault of another party, please call the Kane | Varghese Law Firm for a free consultation.  We specialize in handling wrongful death and survival claims as well as all other types of personal injury claims. 



WE ACCEPT WRONGFUL DEATH CASES FROM THE FOLLOWING LOCATIONS:

Our Austin office serves clients from: Austin, Round Rock, Georgetown, Cedar Park, Lakeway, Fredricksburg, Boerne, San Marcos, New Braunfels, Belton, Temple, Killeen, Waco, Gatesville, Taylor, Bryan, College Station, Taylor, Lockhart, Blanco, Kyle, Buda, Bastrop, Manor, Elgin, Pfugerville, Wells Branch, Jollyville, West Lake Hills, Delvale, Lampasas, Lagrange, Giddings, Johnson City, Llano, Cameron, Travis County, Williamson County, Burnett County, Llano County, San Saba County, Mason County, Gillespie County, Lampasas County, Lee County, Fayette County, Hays County, Cornal County, Caldwell County, Bastrop County.


Our Dallas office serves clients from: Dallas, Fort Worth, Plano, Arlington, Carrolton, Cleburne, Irving, Grand Prairie, Denton, Frisco, McKinney, Garland, Mesquite, Richardson, Rowlett, Rockwall, Greenville, Terrell, Waxahachie, De Soto, Duncanville, Cedar Hill, Everman, Crowley, Mansfield, Haltom City, Granbury, North Richland Hills, Flower Mound, Bedford, Hurst, Euless, University Park, Highland Park, and elsewhere in Dallas County, Tarrant County, Collin County, Johnson County, Kaufman County, Navarro County, Ellis County, Rockwall County, Denton County, and Hunt County.


Our Houston office serves clients from:  Houston, Magnolia, Bellaire, The Woodlands, Spring, Humble, Atascocita, Liberty, Dayton, Channel view, Pasadena, Crosby, Winnie, Anahuac,  Prarie View, Katy, Cinco Ranch, Missouri City, Sugar Land, South Houston, Galena Park, West University, Richmond, Rosenberg, Friendswood, Alvin, League City, Jersey Village, Free Port, Dickinson, La marque, Clear Lake, Texas City, Hitchcock, Galveston, Angleton, Lake Jackson, Brazoria, West Columbia, Wharton, Beaumont, Port Neches, Nederland, Port Arthur, Orange, Virdor, Port Neches, Needvile, Lumberton, Kountze, Silsbee, Cleveland, Splendora, Tomball, Hempstead, Eagle Lake, Sealy, East Barnard, Conroe, Navasota, El Campo, Brenham, Bay City, Bay Town, Willis, Livingston, Shepherd, League City, Huntsville, Coldsprings, Harris County, Montgomery County, Fort Bend County, Jefferson County, Brazoria County, Chambers County, Waller County, Orange County, Hardin County, San Jacinto County, Walker County, Grimes County, Brazos County, Austin County, Colorado County, Columbia County, Matagorda County, Jackson County, Burleson County, Madison County, Polk County, Tyler County, Galveston County


Our San Antonio office serves clients from: San Antonio, Uvalde, Pleasonton, Castle Hills, Alamo Heights, Helotes, Hollywood Park, Kirby, Canyon Lake,  Pearsall, Floresville, Kenedy, Beeville, Alice, Mathis, Sinton, Rockport, Lake Hills, Corpus Christi, Kingsville, Victoria, Seguin, Gonzales, Luling, KerrvilleBexar, Bandera, Guadalupe, Kendall, Medina, Frio, Atascosa, Wilson, Karnes, Bee, Live Oak, McMullen, Uvalde, Kerr, Lavaca, Dewitt.


All office visits to any Kane | Varghese Law Firm location shall be by appointment only.



* We have an attorney on call 24 hours a day, seven days a week.  However, for any reason, should you not be able to reach a live attorney when you call, please leave a message and an attorney will return your phone call promptly.


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