Contact us to speak to a Dallas wrongful death lawyer who provides experienced, aggressive, intelligent representation for the families of those tragically killed in situations caused by other people's negligence and wrongful actions.  Call to speak with us regarding your rights.  The call is free.  You can speak to the attorney directly to answer questions you may have about how to proceed or even whether to proceed on your case. 

Wrongful Death - Overview

If someone’s death is caused by negligence, or caused by misconduct of someone, or an entity such as a company or other organization, then this is a “wrongful death”.  It is a claim and/or lawsuit that must be brought by the immediate family of the decedent.  Decedents in this situation are called “distributees”.  Usually these are spouses, children, or parents.  A personal representative of the estate brings the claim or lawsuit.  There are two types of claims that can be made – an actual “wrongful death” claim, and another which is a “survival action”.  The wrongful death action is a claim for the family/distributees – for things like loss of a parent, spouse, or child – and how this loss has changed the distributees’ lives for the worse in some fashion.  The survival action is the action for the person who died, his or her pain and suffering of the decedent, and those things that the decedent would have been able to make a claim for if they had somehow “survived” the incident.  This survival action / claim passes on to the “estate” as an asset of the estate.  The difference between a “wrongful death” and “survival” claim is that the “wrongful death” claim is for the injury to the children, spouses, parents of the decedent, and the “survival” case is for the injury to the person who died. 

Wrongful Death Elements

To bring a lawsuit and/or claim for wrongful death you must be able to prove:  1) death of someone, 2) caused by negligence or intentional conduct, 3) survivor or survivors (parent, child, spouse), 4) someone who is the representative of the wrongful death action for everyone.

Usually, wrongful death comes from automobile collisions, air crashes, medical mistakes or negligence, occupational conditions, crimes, supervised (or more likely unsupervised when they were supposed to be supervised) activities.

What is claimed?  Damages in a Wrongful Death when a child dies

a)     Pecuniary Loss –

a.     For an adult – amount they would have earned, taking all factors into consideration – age, how much longer expected to work, etc.

b.    for a child - from time person died until she becomes adult - parent is entitled to this money the child would have earned. 

c.     Termination of the Parent-Child Relationship - Love, support, companionship, society that each parent would have received from the minor if she had lived.  The Texas Supreme Court has defined it as:

                        "The positive benefits flowing from the love, comfort, companionship, and society the named plaintiff would, in reasonable probability, experience if the decedent lived."  Moore v. Lillebo, 722 SW2d 683 (Tex. 1986).        

            b)  Mental Anguish Suffered by the Parents as a Result of the Death of the Minor Child -

                        "The emotional pain, torment, and suffering that the named plaintiff would, in reasonable probability, experience from the death of the family member".

                        i)  No prerequisite to prove physical manifestations of the mental anguish (abolished pecuniary loss rule)  Moore v. Lillebo. 

                        ii)  The Jury May Consider:

                                    1)  The relationship between husband and wife, or a parent and child;

                                    2)  The living arrangements of the parties:

                                    3)  Any absence of the deceased from the beneficiary for extended periods;

                                    4)  The harmony of family relations; and

                                    5)  Common interests and activities. 

                                    Moore v. Lillebo. 

            c)  Exemplary Damages - are recoverable where the defendant's "willful act or omission or gross negligence" caused the death.  CPRC 71.009. 

                        - Statutory cap of CPRC 41.007 & 41.008 applies to wrongful death exemplary damages.

                        - CPRC 101.023 and 101.024 may also apply

                        - Surviving Parents are NOT allowed to recover exemplary damages for wrongful death - Gen Chem Corp v. Del La Lastra, 852 SW2d 916 (Tex 1993); Hofer v. Lavender, 679 SW2d 470 (Tex. 1984); Scoggins v. Southwestern, 434 SW2d 376 (Tex Civ App -- Tyler 1968, writ refd nre). 

            d) In the case of recovery for loss of society and companionship and for mental anguish, the award need not be reasonably proportionate to any pecuniary damages.  Mo Pac RR Co v. Lane, 720 SW2d 830 (Tex App -- Texarkana 1986, no writ).

            e)  Death of statutory beneficiary - If the beneficiary dies - his/her claim does not pass to its estate - the claim dies with them. 

            f)  Joinder of all Parties - ALL statutory beneficiaries who are alive must be made parties, or one of the beneficiaries may bring the suit on behalf of all the statutory beneficiaries.  CPRC 71.004

                        i)  Nonjoinder of all beneficiaries is no longer fundamental error and will be waived if the defendant fails to object. Schafer v. Stevens, 352 SW2d 471 (Tex Civ App -- Dallas 1961, writ dism'd). 

                        ii)  A beneficiary MAY execute a disclaimer of any interest in the suit and waive any claim under the Texas Wrongful Death Act - and thereby avoid being joined as a beneficiary against his will.  Tex & Pa Ry Co v. Wood, 199 SW2d 652 (Tex 1947); Dennis v. Gulf C & SF Ry Co, 224 SW2d 704 (Tex 1949).           

            g)  Statute of Limitations - 2 years from date of death/injury

            h)  Jurisdiction - must be in District Courts.

Survival Actions
- Damages - CPRC 71.021 is a claim by or on behalf of an estate to recover for damages sustained by the decedent prior to death. 

        -CPRC States: 

        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.

        Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.

    DAMAGES RECOVERABLE:
    a)  Physical Pain & Mental Anguish - To recover for physical pain and/or mental anguish suffered by the injured victim prior to her death, competent evidence must establish that the deceased consciously and actually experienced the physical pain and mental anguish.  Borth v. Charley's Concrete Co, 139 SW3d 391 (Tex App -- Fort Worth 2004, pet denied); Russell v. Ramirez, 949 SW2d 480 (Tex App -- Houston [14th Dist] 1997, no pet).

Bystander Claims:

If a person had a close personal relationship with the decedent, and witnessed the death of the decedent, then they will have what is called a “bystander” claim.  These types of claims may cover people who might not be covered under the Wrongful Death Statute or the Survival statutes.

All 50 states have wrongful death laws.  A Dallas wrongful death attorney will know the law and system of justice in the North Texas area.  All states vary but generally provide for the beneficiaries of the decedent to file a lawsuit for a death that was caused by negligence or some other wrongful act.  Failing to diagnose a fatal disease, drunk driving, construction accidents, auto accidents, defective products all may cause a wrongful death in which you will need to talk to a wrongful death attorney to make sure you understand your legal rights and can make an educated decision on how to proceed. 

Some examples of things you may recover for wrongful death include anticipated future earnings, lost benefits, expenses from the death, lost inheritance, pain & suffering in some instances, loss of care or protection or companionship, and punitive damages in some instances. 

If you have a loved one who has died from the negligence or wrongful act of someone, and you live in the Dallas, North Texas area, call our office to speak to a Dallas wrongful death attorney.   Our local phone is (972) 599-4100.  Our toll free number is (855) 599 4100.  Or contact us online for a FREE consultation.