The Baez Law Firm | San Antonio Lawyers and Attorneys

The Baez Law Firm | San Antonio Lawyers and Attorneys
San Antonio Lawyers and Attorneys

Saturday, March 8, 2008

Texas wrongful death actions

A wrongful death has occurred when a person is killed due to the negligence or other liability of a person or entity. Surviving beneficiaries and dependents are entitled to monetary damages in instances of wrongful death. The Texas Legislature in 1860 enacted the original Texas Wrongful Death Statute. The Wrongful Death Act has been amended, codified and recodified over the years and is now Chapter 71 of the Texas Civil Practice and Remedies Code.

The Act provides the exclusive remedy for wrongful death in Texas, compensating the decedent, spouse, parents, and children for the losses they sustained as a result of the decedent's injury and death. Tex. Civ. Prac. & Rem. Code Ann. §71.004(a).

A wrongful death action is separate and distinct from a survival action, where the individual's cause of action for injury to his health, reputation or person survives in favor of his heirs, legal representative, and estate. See Tex. Civ. Prac. & Rem. Code Ann. §71.021.

"A person is liable for damages arising from an injury that causes an individual's death if the injury was caused by the person/agent or servant's wrongful act, neglect, carelessness, unskillfulness or default." Tex. Civ. Prac. & Rem. Code Ann. §71.002(b).

Suit may be brought under the Act "only if the individual injured would have been entitled to bring an action for the injury if he had lived." Tex. Civ. Prac. & Rem. Code Ann. §71.003(a). Under Texas law, plaintiffs bringing a wrongful death action are in the procedural shoes of the victim, and the defenses to victim's personal injury action are defenses to plaintiff's wrongful death claim.

The basic elements of a wrongful death claim are:
Death caused, in whole or in part, by the conduct of another person or entity.
Person or entity was negligent, or strictly liable, for victim's death
There are surviving beneficiaries or dependents
Monetary damages have resulted from individuals death.

The wrongful death action is subject to all the conditions to which decedent's action would have been subject had he or she only been injured. If a defendant to a wrongful death action dies while the suit is pending, or if an individual against whom an action could be instituted dies before the suit is filed, the individual's executor or administrator may be named as defendant in his place. Tex. Civ. Prac. & Rem. Code Ann. §71.008(a).

The surviving spouse, children and parents may bring the suit. Tex. Civ. Prac. & Rem. Code Ann. §71.004(b). If named beneficiaries do not bring an action within three (3) months of the death of the injured party, the executor or administrator of the estate shall bring the action on behalf of the beneficiaries unless instructed not to do so by all the beneficiaries. Tex. Civ. Prac. & Rem. Code Ann. §71.004(c).

A wrongful death cause of action accrues at death, if it exists at all, 2 years from death.
The two-year statute of limitations is absolute from the date of death. The so-called "discovery rule" does not apply in wrongful death and survival actions. In death cases raising limitations issues in medical malpractice claims, the courts have determined that, as between the statute of limitations for death claims, §16.003(b) of the Tex. Civ. Prac. & Rem. Code Ann., and the statute of limitations set forth in § 74.251. for health care liability claims, the latter applied.

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