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WRONGFUL DEATH LITIGATION
Brian Lauten has successfully tried wrongful death cases in Texas to juries. Chapter 71 of the Texas Civil Practice & Remedies Code states that an action for wrongful death may be brought if the "wrongful act, neglect, carelessness, unskillfulness, or default" of one party causes the death of another. 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.
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) (Vernon 2014).
In Texas, the surviving spouse, children, and parents of the deceased person may file a wrongful death claim. Any one of these individuals may file the claim singly or as a group. If the surviving spouse, children or parents do not file a wrongful death claim within three months of the date of the death, the personal representative or executor of the deceased person's estate may file the claim instead, unless a surviving family member specifically requests that the wrongful death claim not be filed. Adult children may file wrongful death claims over the death of a parent.
An adopted child may also file a wrongful death claim for the death of an adoptive parent, if the child was fully and legally adopted by that parent; however, an adopted child may not file a claim for the wrongful death of a biological parent. Similarly, the adoptive parents may file a wrongful death claim if their adopted child suffers an untimely death.
A Texas wrongful death claim may be filed even if criminal charges are also filed in connection with the death.
Damages in a Texas wrongful death claim are paid to compensate the surviving family members and the estate for their losses stemming from the untimely death. Damages in a Texas wrongful death case may compensate for losses like:
In some Texas wrongful death claims, exemplary damages are available. Exemplary damages may be recovered when a wrongful death is caused by a willful act or omission, or by gross negligence. In other jurisdictions, exemplary damages are sometimes known as "punitive damages."
The purpose of exemplary damages is not to compensate the family, but to punish a wrongdoer and send a message that willful or grossly negligent behavior will not be tolerated. When damages are awarded in a Texas wrongful death claim, they are divided among the surviving family members in proportion to the injury they suffered as a result of the untimely death. These proportions are typically determined by the court.
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) (Vernon 2014).
In Texas, the surviving spouse, children, and parents of the deceased person may file a wrongful death claim. Any one of these individuals may file the claim singly or as a group. If the surviving spouse, children or parents do not file a wrongful death claim within three months of the date of the death, the personal representative or executor of the deceased person's estate may file the claim instead, unless a surviving family member specifically requests that the wrongful death claim not be filed. Adult children may file wrongful death claims over the death of a parent.
An adopted child may also file a wrongful death claim for the death of an adoptive parent, if the child was fully and legally adopted by that parent; however, an adopted child may not file a claim for the wrongful death of a biological parent. Similarly, the adoptive parents may file a wrongful death claim if their adopted child suffers an untimely death.
A Texas wrongful death claim may be filed even if criminal charges are also filed in connection with the death.
Damages in a Texas wrongful death claim are paid to compensate the surviving family members and the estate for their losses stemming from the untimely death. Damages in a Texas wrongful death case may compensate for losses like:
- lost earning capacity
- lost care, maintenance, services, support, advice, and counsel the deceased would have provided his or her surviving family members
- mental and emotional anguish, pain, and suffering
- lost love, companionship, comfort, and society, and
- lost inheritance, including what the deceased would likely have saved and left to surviving family members if he or she had lived a normal expected lifetime.
In some Texas wrongful death claims, exemplary damages are available. Exemplary damages may be recovered when a wrongful death is caused by a willful act or omission, or by gross negligence. In other jurisdictions, exemplary damages are sometimes known as "punitive damages."
The purpose of exemplary damages is not to compensate the family, but to punish a wrongdoer and send a message that willful or grossly negligent behavior will not be tolerated. When damages are awarded in a Texas wrongful death claim, they are divided among the surviving family members in proportion to the injury they suffered as a result of the untimely death. These proportions are typically determined by the court.