Frequently Asked Questions:
Who May Recover Damages for the Death of Another in Texas? In Texas, the law provides that the “next of kin” of the decedent may recover damages for the death of a loved one. “Next of kin” may include the widow and surviving children. The next of kin of the decedent may recover damages for their “pecuniary injuries.” “Pecuniary injuries” includes money, goods and services received by the next of kin of the deceased. Where there are surviving children, it also includes the instruction, moral training and education that they would have received from the deceased parent. “Pecuniary injuries” also includes the loss of the spousal relationship.
What About the Suffering of the Decedent Before Death? Damages for the pain and suffering experienced by the decedent from the time of the injury until the time of death may be recovered. The plaintiff must prove that the decedent actually and consciously endured pain and suffering before death in order to recover. When the death is instantaneous or the decedent is rendered immediately unconscious or comatose, an action for pain and suffering cannot be sustained. The conscious pain and suffering the decedent experienced is recoverable even if the time interval between injury and death is very short. The duration of the pain and suffering determines the amount of compensation. Whether the decedent experienced pain between the time of injury and the time of death may greatly impact the compensatory value of such a wrongful death claim. When a loved one is killed as a result of the wrongful act of another, Texas law provides 2 causes of action – a wrongful death action and a survival action.
Wrongful Death Actions The Wrongful Death Act allows a surviving spouse, children and parents to recover for their own injuries incurred as a result of the loss of their loved one. These injuries include: 1) pecuniary losses, 2) mental anguish, 3) loss of companionship and society, 4) loss of inheritance, 5) pre-judgment and post-judgment interest, and 6) court costs. Additionally, exemplary damages are available when the death is caused by a willful act or omission or gross negligence. The elements of a wrongful death claim, found in Chapter 71 of the Texas Civil Practice and Remedies Code are as follows: • The plaintiff is either a spouse, child or biological parent of the decedent; or • The executor/administrator of the decedent’s estate, if a spouse, child or biological parent does not file suit within three months of the decedent’s death; and • The defendant is a person or a corporation; and • The defendant’s (or its agents’ or servants’) wrongful act, neglect, carelessness, unskillfulness, or default caused the death of the decedent; and • The decedent would have been entitled to bring an action for the injury if he had lived; and • The plaintiff suffered actual injury.
Survival Actions A survival action allows an estate, heirs or legal representative of the decedent to sue for the decedent’s personal injuries. Survival plaintiffs recover damages for the injuries suffered by the decedent prior to their death as an ordinary personal injury lawsuit. These injuries include any damages the decedent suffered as a result of the defendant’s wrongful conduct, including pain and mental anguish, medical bills and funeral expenses.
The elements of a survival action, also found in Chapter 71 of the Texas Civil Practice and Remedies Code, are as follows:
• The plaintiff is the legal representative of the decedent’s estate; and
• The decedent had a cause of action for personal injury to his health, reputation, or person before he died; and
• The decedent would have been entitled to bring an action for the injury if he had lived; and
• The defendant’s wrongful act caused the decedent’s injury If you would like to speak to a knowledgeable and compassionate wrongful death attorney at Bristol & Dubiel LLP, call our office at (214) 880-9988 (Dallas) or 214-880-9988 (San Antonio) to schedule a free initial consultation. Or if you prefer, contact us through this Web site and a wrongful death lawyer will be in touch with you shortly.