Dallas Wrongful Death Lawyer
- Wrongful Death FAQs
- Who can file a wrongful death claim?
- What damages can surviving family members recover in a wrongful death case?
- Overview of Potential Damages in a Wrongful Death Case
- Damages Available to Surviving Parent for Wrongful Death of Child
- Damages Available to Surviving Spouse for Wrongful Death of Spouse
- Damages Available to Surviving Child for Wrongful Death of Parent
- Exemplary Damages
- How long do we have to file a wrongful death claim after the accident?
Wrongful Death FAQs
When considering a wrongful death claim for a family member who was killed because of the wrongful actions of another person or entity, family members often have many questions and concerns. Here are some common ones:
Who can file a wrongful death claim?
In Texas, certain surviving family members may bring a wrongful death claim if the death was caused by another person or entity’s “wrongful act, neglect, carelessness, unskillfulness, or default.” Tex. Civ. Prac. & Rem. Code § 71.002(d)(2)(A). The surviving family members who may bring a wrongful death claim include the spouse, child, or parent of the deceased. Tex. Civ. Prac. & Rem. Code § 71.004(a).
Both minor and adult children may bring wrongful death claims against the responsible party. Additionally, adopted children may bring a wrongful death claim in most cases.
One or both surviving parents of the deceased may bring a wrongful death claim regardless of whether their child was a minor or adult at the time of their death.
Unfortunately, surviving siblings, divorced spouses, and grandchildren may not bring a wrongful death action.
Individual wrongful death claims may be separately filed by each eligible survivor or by one of the eligible survivors on behalf of the entire group of eligible surviving family members.
If a surviving spouse, child, or parent does not file a wrongful death action within three months after the death of their family member, the decedent’s estate executor or administrator must bring a wrongful death action unless all of the surviving children, parents, and the spouse request them not to. Tex. Civ. Prac. & Rem. Code § 71.004(c).
What damages can surviving family members recover in a wrongful death case?
Overview of Potential Damages in a Wrongful Death Case
The jury may award as compensation for a wrongful death such damages as it finds proportionate to the injury sustained by the statutory beneficiaries as a result of the death. Tex. Civ. Prac. & Rem. Code § 71.010(a). The jury will also divide and apportion the damages among the eligible beneficiaries. Tex. Civ. Prac. & Rem. Code § 71.010(b). Common categories of damages recovered in a wrongful death action include:
- medical expenses prior to the date of death;
- funeral and burial or cremation expenses;
- pain and suffering, both for the survivors and in certain cases for the deceased;
- lost wages, assuming same job and normal life extectancy;
- loss of earning capacity;
- lost inheritance;
- lost of household services;
- loss of care, support, and guidance; and
- lost love or companionship.
Let’s look at a few of the specific categories of damages in greater detail.
Damages Available to Surviving Parent for Wrongful Death of Child
In an action for the death of a minor child, the surviving parents are entitled to recover the monetary value of the child’s services from the time of death until the date the child would have turned eighteen (Tex. Civ. Prac. & Rem. Code § 129.001), less the cost of the child’s support, education, and maintenance, plus the value of any monetary contributions that the child in reasonable probability would have made to the parents after the child reached the age of eighteen. Carlisle v. Duncan, 461 S.W.2d 254, 255–256 (Tex. Civ. App.—Dallas 1970, no writ).
A parent may recover for the loss of companionship and society of his or her child and for mental anguish caused by the child’s death. Sanchez v. Schindler, 651 S.W.2d 249, 251–254 (Tex. 1983). This is true whether the child is a minor or an adult. See Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 635 (Tex. 1986) (recognizing that adult children may recover damages for loss of companionship); City of Houston v. Stoddard, 675 S.W.2d 280, 285 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.) (recognizing that a surviving parent may recover damages for mental anguish caused by death of their adult child).
Damages Available to Surviving Spouse for Wrongful Death of Spouse
A surviving spouse is entitled to recover not only the financial contributions that the spouse shows he or she would have received in reasonable probability, but also the pecuniary value of intangible services that the surviving spouse would have received in reasonable probability. These intangibles include care, counsel, and attention. See Tex. Consol. Transp. Co. v. Eubanks, 340 S.W.2d 830, 833 (Tex. Civ. App.—Waco 1960, writ ref’d n.r.e.).
A surviving spouse may recover damages for loss of companionship and mental anguish. Estate of Clifton v. Southern Pacific Transp. Co., 709 S.W.2d 636, 639 (Tex. 1986). Recovery of mental anguish damages does not depend on proof that mental anguish is manifested physically. Moore v. Lillebo, 722 S.W.2d 683, 685 (Tex. 1986).
Damages Available to Surviving Child for Wrongful Death of Parent
A minor child of a decedent may recover a sum of money representing the amount the decedent would reasonably and probably have contributed to the maintenance of the child and “the value of the services which the [parent] in reasonable probability would have rendered them in training, advising and educating them.” Continental Bus Sys., Inc. v. Biggers, 322 S.W.2d 1, 12 (Tex. Civ. App.—Houston 1959, writ ref’d n.r.e.).
Adult children may also recover damages for the loss of prospective contribution from a deceased parent and need not produce evidence of particular amounts of money actually received from the decedent or expected to be received had the decedent lived. Malone & Hyde, Inc. v. Hobrecht, 685 S.W.2d 739, 749 (Tex. App.—San Antonio 1985, writ dism’d agr.).
Children are entitled to recover damages under the Texas Wrongful Death Act for the loss of companionship of their parents and for mental anguish caused by the death of their parents. Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 551 (Tex. 1985)]. Recovery of mental anguish damages is not dependent on proof that mental anguish is manifested physically. Moore v. Lillebo, 722 S.W.2d 683, 685 (Tex. 1986).
The surviving spouse and decedent’s heirs may recover exemplary damages in a wrongful death action in which the defendant’s conduct was fraudulent, malicious, willful, or grossly negligent. Tex. Const. art. 16, § 26; Tex. Civ. Prac. & Rem. Code § 71.009; see also Tex. Civ. Prac. & Rem. Code § 41.003(a).
In contrast, surviving parents of a deceased child may not recover exemplary damages for their child’s wrongful death. Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 922–924 (Tex. 1993). Parents may, however, recover actual damages for wrongful death (Tex. Civ. Prac. & Rem. Code § 71.004), and may recover exemplary damages through the decedent’s estate in a survival action. Hofer v. Lavender, 679 S.W.2d 470, 476 (Tex. 1984).
How long do we have to file a wrongful death claim after the accident?
The statute of limitations for filing a wrongful-death action in a lawsuit is two years from the date of the decedent’s death.
Addressing these questions and concerns is crucial to ensure that family members make informed decisions and feel supported during what is often a challenging and emotional time.