In Texas, when a person dies from an injury caused due to someone’s negligence, certain surviving family members as well as the deceased’s estate may have a right to pursue a lawsuit for the death of that family member. In Texas, there are two causes of action for the death of a loved one—a wrongful death claim and a survival claim.
Wrongful Death claim
Under Chapter 71 of the Texas Civil Practices & Remedies Code, the surviving spouse, children and parents all have a right to bring a wrongful death action if the death is caused by a wrongful act, neglect, carelessness, unskillfulness, or default of another person or corporation. This means that if a loved one is killed by the negligence of another, such as an 18-wheeler truck crash, drunk driving wreck, car collision, defective product or explosion, the surviving spouse, children and parents of the deceased have a right to sue for the loss of the loved one.
What damages can be sought in a wrongful death action?
The following damages can be sought in a wrongful death claim:
Pecuniary loss
The loss of the care, maintenance, support, services, advice, counsel and reasonable contributions of money, excluding loss of inheritance, which would have been received if the deceased had lived.
Loss of companionship and society
The loss of positive benefits flowing from the love, comfort, companionship, and society that the person would have received if the deceased had lived.
Mental anguish
The emotional pain, torment, and suffering experienced by the person because of the death of the deceased.
Loss of inheritance
What would have been received if the deceased had lived a full life. Obviously, the parents of the deceased usually would not recover these damages, but they are important to a surviving spouse or children.
Other damages
In those cases where the conduct of the wrongdoer was egregious (wilful act or gross negligence), the parties can seek exemplary (punitive) damages to punish the wrongdoer and send a message to others not to repeat this type of conduct.
Survival claim
The second cause of action is called a Survival claim. The survival claim is for the benefit of the deceased’s estate and heirs. The claim is brought by the personal representative (executor/administrator) of the estate of the deceased.
What damages can you seek in a survival action?
The following damages can be sought in a survival claim:
Pain and mental anguish
The conscious physical pain and emotional pain, torment, and suffered experienced by the deceased before his/her death as a result of the incident which caused their death.
Medical expenses
Those necessary medical and hospital expenses received by the deceased for treatment of injuries sustained as a result of the incident which caused their death. Essentially, the medical expenses incurred in attempting to save the life of the deceased. Examples would be ambulance, hospital and emergency room expenses.
Funeral and burial expenses
The reasonable amount of expenses for the funeral and burial of the deceased suitable to the deceased’s station in life.
How long do you have to file a lawsuit in Texas for the death of a loved one?
In Texas you are required to file the lawsuit within two years of the person’s death. There are a few exceptions, but they are rare. It is best to assume you must bring the lawsuit within two years of the person’s death.
If you lost a loved one due to someone else’s negligence, you should speak with an experienced personal injury attorney to discuss your case. At the Kisselburgh Law Firm, we have represented many families for the deaths of their loved ones. If you would like to discuss your case, call us at 817-500-0990 or contact us online for a free consultation.