HERBERT & EBERSTEIN
Have you lost a loved one due to someone else's careless conduct?
Call for a consultation if you need to pursue a wrongful death claim. Our experienced lawyers can help you pursue justice.
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Many accidental deaths can be prevented. A wrongful death suit holds the responsible party accountable.
According to statistics from the Center for Disease Control there were approximately 161,374 unintentional or accidental injury deaths in 2016. Many of these deaths were caused by the wrongful or negligent conduct of others and could have been prevented. Texas law provides a way for families to recover damages for lost loved ones in certain situations.
If your family has lost a loved one because of an accident caused by someone else’s careless conduct, you may have considered pursuing a legal claim against the responsible party. In Texas, the law allows the family of the deceased to pursue a wrongful death claim when the death is a result of the negligence of another person or corporation. Wrongful death statutes in Texas perform an important role in our state by allowing families to hold individuals and corporations accountable. When a death occurs because of someone’s negligence, Texas law permits the family to recover damages against the responsible party, to make the family whole, to hold the responsible party accountable, and to send a message to the community to help make sure that other families don’t suffer a similar loss.
Texas Civil Practice and Remedies Section 71.002 establishes a statutory right to bring a wrongful death action against a person or corporation when the “wrongful act, neglect, carelessness, unskillfulness, or default” result in death. A wrongful death claim might result from a slip and fall, a DUI auto crash, a product liability claim (like a faulty airbag, for example), medical malpractice, and many other types of incidents. Below is a description of who can file a wrongful death lawsuit, and what damages are available to the surviving family.
Who Can File a Wrongful Death Case in Texas?
In Texas, only the surviving spouse, surviving children, or parents of the deceased may file a wrongful death claim. Also, the administrator of the estate of the deceased is permitted under Texas law to file a claim for damages on behalf of the estate of the deceased, if approved by the surviving heirs of the deceased. However, the administrator must wait for three months after the death of the deceased before filing a suit. Surviving siblings in Texas do not have the right to file a wrongful death claim on behalf of the decedent, unlike in some other states.
Every state has its own rules regarding who may file a wrongful death claim. For example, in some states, grandchildren may receive a share of the damages if there are no surviving children of the deceased. When a family has a loved one who has died in another state, they should consult with an attorney familiar with that state’s wrongful death statutes and rules. It may be advantageous for a family to elect to file suit in a certain state, based on the state’s wrongful death laws.
Damages Available in a Wrongful Death Case
Texas law provides for various types of damages to the heirs of the deceased, or the estate when filing a wrongful death lawsuit.
In wrongful death claims, families may be able to recover loss of future earnings of the deceased. For example, if the deceased was a professional and had a long career ahead of him or her, then the family may be able to submit a calculation of the income that the deceased would have received during his or her lifetime and recover for this lost income. This type of damage is usually called a loss of future earnings or future economic loss.
A family may be able to recover other types of economic losses in a Texas wrongful death claim. For example, the family might be able to recover out of pocket costs such as hospitalization and medical expenses of the deceased family member, and burial expenses.
Texas law also permits the family to recover non-economic damages. This type of damage includes subjective pain and suffering, loss of companionship and support, and other emotional and mental damages suffered by members of the family. Although these damages are difficult to quantify, the emotional trauma from a loss of a family member is often the most devastating aspect of losing a loved in a wrongful death claim.
Another type of damages that may be available to the surviving family under the Texas wrongful death statutes is exemplary damages or punitive damages. These damages are not as common as economic and non-economic damages in wrongful death cases. Unlike economic and non-economic damages, exemplary damages are not intended to compensate or make whole the surviving family. They are meant to punish the defendant for really bad conduct and to deter future similar conduct by the defendant. These damages are only available if the defendant intentionally caused the death of the family member or if the defendant committed gross negligence which resulted in the death. Texas places limits on the amount of exemplary damages that may be awarded in a wrongful death case.
These damages may not exceed whichever of the following is greatest: (1) two times the amount of the economic damages; (2) An amount equal to any noneconomic damages, but no more than $750,000.00; (3) $200,000.00.
In addition to damages recoverable by the members of the family, the estate of the decedent may also recover damages that the decedent would have been able to recover if the decedent had been alive to pursue an action on his or her own behalf. These damages include the physical pain and suffering, and the mental anguish that the decedent experienced before dying. If the decedent had a prolonged period of suffering prior to his or her death, these damages may be substantial.
Statute of Limitations in Wrongful Death Cases
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