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Texas Wrongful Death and Survival

©2014 Mark Courtois and Diane Davis

Wrongful death refers to the ability of a person to bring a claim against a tortfeasor for actions causing the death of a spouse, parent, or child. At common law, no cause of action for wrongful death existed in Texas. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 356 (Tex. 1990); Godfrey v. BP Prods. N. Am., Inc., 14-08-00857-CV, 2009 Tex. App. LEXIS 6630, 2009 WL 2589476, at *2 (Tex. App.--Houston [14th Dist.] Aug. 25, 2009, no pet.) (mem. op.). An action for wrongful death is a purely statutory remedy authorized by the Wrongful Death Act, which provides recovery solely for the surviving spouse, children, and parents of the deceased. See Tex. Civ. Prac. & Rem. Code Ann. § 71.004(a). The wrongful death statute provides that "[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." Id. § 71.002(b). A Plaintiff may be entitled to recover punitive damages if the death was caused by the wilful act or omission or gross negligence of the defendant. Id. at § 71.009. Comparative responsibility applies to wrongful death actions where the beneficiaries' damages will be reduced, or even precluded, by the decedent's negligence which contributed to the decedent's death. Dugger v. Arredondo, 408 S.W.3d 825, 831 (Tex. 2013).

Parties who do not Have Standing to Pursue Wrongful Death Action

Grandchildren do not have standing to bring a suit under the Wrongful Death Act because they are not among the statutorily designated persons who can bring such a claim. See Tex. Civ. Prac. & Rem. Code Ann. § 71.004(a); Norris v. Triumph Hospital of East Houston, 2014 Tex. App. LEXIS 6347, at 5. In addition, the courts have held that a deceased father's biological children do not have standing to sue under the Wrongful Death Act if the father's parental rights were terminated before his death. LG Elecs., USA, Inc. v. Grigg, 424 S.W.3d 804, 809 (Tex. App.--Tyler 2014, no pet.). Moreover, a sibling does not have standing to assert a claim for the death of a brother or sister. Godfrey, 2009 Tex. App. LEXIS 6630, 2009 WL 2589476, at *1-2.

Survival Claims

Survival claims refer to the damages that the deceased person incurred between the time of the injury and the person's death, including conscious pain and suffering and funeral expenses. The claim survives the decedent's death in favor of the decedent's heirs, legal representatives, and estate. Tex. Civ. Prac. & Rem. Code Ann. § 71.021(b).

Damages

In Wrongful Death actions, the following elements of damages are typically recoverable:

1. Pecuniary Loss in the past and in the future. "Pecuniary loss" means the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value, excluding loss of inheritance, that the spouse, in reasonable probability, would have received from decedent had he lived.

2. Loss of Companionship and Society in the past and future. "Loss of companionship and society" means the loss of the positive benefits flowing from the love, comfort, companionship, and society that the Plaintiff, in reasonable probability, would have received from the Decedent had he lived.

3. Mental Anguish in the past and future. "Mental anguish" means the emotional pain, torment, and suffering experienced by the Plaintiff because of the death of the spouse, parent, or child..

4. Loss of Inheritance. "Loss of inheritance" means the loss of the present value of the assets that the deceased, in reasonable probability, would have added to the estate and left at natural death to the Plaintiff.

In a Survival action for the decedent's estate, the following elements of damages are typically recoverable:

1. Pain and Mental Anguish. "Pain and mental anguish" means the conscious physical pain and emotional pain, torment, and suffering experienced by the decedent before his death as a result of the occurrence in question.

2. Medical Expenses. "Medical expenses" means the reasonable expense of the necessary medical and hospital care received by the decedent for treatment of injuries sustained by him as a result of the occurrence in question.

3. Funeral and Burial Expenses. "Funeral and burial expenses" means the reasonable amount of expenses for funeral and burial for the decedent reasonably suitable to his station in life.