Elements of a Texas Wrongful Death Lawsuit

Find out what civil remedies Texas law offers when an accident or intentional act results in someone's death.


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When someone else's negligent or intentional act brings about the death of a loved one, a plaintiff may have grounds for a wrongful death suit. When a person dies, the aftermath can be financially and emotionally devastating. While no person or amount of money can ever replace a loved one, Texas has provided a set of laws that can help ease the burden by compensating for various expenses.

The Element of Negligence

Negligence is the very root of wrongful death suits. To prove negligence, a plaintiff must show a judge or jury that the defendant had a legal duty to avoid bringing harm to the decedent. The plaintiff must then demonstrate that there was a breach of that duty, and that actual harm resulted from the breach of duty.

While there are various types of negligence laws that are used throughout the country, when it comes to shared fault, Texas uses a modified version of pure comparative negligence. This modified comparative fault, or the 51% rule, states that an injured party can only recover damages if it is determined that his or her fault does not reach 51%.  If a plaintiff is more than 50% responsible for injuries incurred he or she may not recover any damages.

Laws Granting Survivors the Right to Sue

Historically, a Texas cause of action for personal injuries was terminated upon the death of the victim, meaning that spouses, parents and children of someone who died could not sue for criminal damages. Now, to provide for justice and the opportunity for damages to be recovered, two actions were developed: Wrongful Death Act and Survival Statute.

Wrongful Death Action

The Wrongful Death Act repealed the aforementioned common law rule, and provided surviving spouses, parents and children with the opportunity to sue for damages following their loved one's death.  A plaintiff in a wrongful death action can recover four basic types of damages:

1. Pecuniary losses: The financial loss an individual may experience after a person dies due to someone else's negligence. This can include loss of financial support, living, travel, medical and funeral expenses.
2. Mental anguish: Emotional pain, torment and suffering that result from the death of a family member.
3. Loss of companionship and society: The positive benefits of love, comfort, companionship and society that have vanished after the death of a loved one.
4. Loss of inheritance: This is what the decedent would have accumulated and left to a plaintiff if he or she had lived a normal expected lifetime.

Survival Action

The Texas Survival Statute allows an estate, heirs or legal representatives to bring a survival action CPRC § 71.021(b). This action retained its name because it allows a personal injury lawsuit to "survive" the death of a person, and is prosecuted in the same manner as any other personal injury lawsuit in which the injured person had lived. The following are the elements of a survival action:

1. The plaintiff is the legal representative of the estate of the decedent.
2. The decedent had a cause of action for personal injury to his or her health, reputation or person before he or she died.
3. The decedent would have been entitled to bring a cause of action for the injury if he or she had lived.
4. The defendant's wrongful act caused the decedent's injury.

The biggest difference between a Texas wrongful death action and a survival action is that in a survival action, a plaintiff may only collect damages suffered by the decedent before death, as well as funeral expenses. Any damages awarded to a plaintiff will be collected and belong to the estate. They will then be distributed to those people who would have received them had the decedent obtained them immediately before death.

Statutes of Limitations

As in any other type of personal injury case, the statute of limitations for a wrongful death action is two years. This means that the claim must be made within two years of the date the individual deceased. If the wrongful death plaintiff is suing on medical negligence, the claim may not have a two year statute of limitations. In this case, the statute of limitations expires two years after the negligent act occurred.

In a survival action, the limitations period is the same as whatever cause of action the plaintiff chooses to use. A court will only alter that rule when the onset period of the injury was especially elongated.

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