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Law Office of Hawley Holman
1905 Mall Drive
Texarkana, Texas 75503

Mailing Address:
P.O. Box 5367
Texarkana, Texas 75505-5367

Telephone:  903-792-4513
Toll Free:    877-792-4513
Facsimile:    903-792-3762



Licensed in
Arkansas and Texas
The Law Office of Hawley Holman, in Texarkana, Texas, represents people throughout East Texas and Southwest Arkansas in all cases of personal injury and wrongful death.
Articles - Wrongful Death, Survival and Bystander Claims
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WRONGFUL DEATH, SURVIVAL AND BYSTANDER CLAIMS

 I. THE WRONGFUL DEATH CAUSE OF ACTION

 A. Cause of Action Under the Texas Wrongful Death Act

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’s 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’s or agent’s 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 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 Art. 4590i for health care liability claims, the latter applied.

B. Parties

Only the parties identified in TEX. CIV. PRAC. & REM. CODE ANN. § 71.004(a) (i.e., the surviving husband, wife, children, and parents) may bring a wrongful death cause of action. Therefore, in Texas brothers and sisters of the deceased are without standing under the Act to bring suit for wrongful death. However, other States may expand the class of persons who may sue for wrongful death; for example, Arkansas allows for brothers and sisters to recover for wrongful death damages so long as certain criteria is met.

The right of action conferred by the wrongful death statute is personal and for the sole benefit of the statutory beneficiaries. The cause of action ceases to exist upon the death of the beneficiary.

Minors and adoptees are entitled to recover for the deaths of their natural parents or parents by legal adoption. Equitably adopted children, however, are not entitled to recover under the Act.

Illegitimate children have a right to recover. However, before an illegitimate child can recover for the wrongful death of his or her father, the alleged child must prove by clear and convincing evidence that he is the offspring of the deceased. Evidence such as statement of paternity or other similar admissions, proof of physical resemblance, blood tests, or evidence regarding periods of conception or gestation may suffice. As long as the alleged child produces “some evidence” of paternity, the issue may be submitted to the jury, who must then determine whether the evidence is “clear and convincing”.

There is no cause of action for injuries sustained by a viable fetus absent a subsequent live birth. Similarly, there is no wrongful death or survival cause of action for the death of a fetus.

Parents may recover for personal injuries sustained by a viable fetus where the child is born alive but dies soon thereafter.

Adult children may recover damages for the wrongful death of their parents, and in arriving at such damages, loss of prospective contribution from the deceased parent may be taken into consideration.

The spouse must be a legal spouse at the time of death and not divorced from decedent. The party bringing the suit must prove a valid marriage to the deceased at the time of death. A valid marriage in Texas may be either ceremonial under § 2.001 of the Family Code, or informed under 2.401 of the Family Code, sometimes also referred to as a common law marriage. TEX. FAM. CODE ANN. § 2.401 estops a person from claiming that he or she is informally married, unless he or she starts a proceeding to establish an informal marriage within § 2.401's one year time limit.

There are only two categories of truly void marriages in Texas. The first void marriage is one prohibited by reason of consanguinity, i.e., certain degrees of relationship. TEX FAM. CODE ANN. § 6.201. The second void marriage is a marriage that was entered into if either party had been previously married and the prior marriage had not been lawfully dissolved. TEX. FAM. CODE ANN. § 6.201. The existence of a prior legally undissolved marriage renders any later marriage attempted, formal or informal, void.

Action can be maintained by a surviving wife or husband, whether or not the surviving spouse has remarried since their spouse’s Death. TEX. CIV. PRAC. & REM. CODE ANN. § 71.005 provides as follows:

In an action under this subchapter, evidence of the actual ceremonial marriage of the surviving spouse is admissible, if it is true, but the defense is prohibited from directly or indirectly mentioning or alluding to any common law marriage, and extramarital relationship, or the marital prospects of the surviving spouse.

The statute has been constructed by Texas courts to permit evidence for the limited purpose of proving ceremonial remarriage, but not for the purpose of mitigating damages.

Natural or adoptive parents are entitled to recover for the wrongful deaths of their children.

Stepparents may not recover for the wrongful death of a stepchild absent legal adoption. Likewise, a stepchild cannot recover for the wrongful death of the stepparent. Neither foster parents nor foster children are beneficiaries within the meaning of the Act unless there has been formal adoption.

Similarly, absent legal adoption, managing conservators, foster parents, and individuals who stand in loco parentis, are not given parental status under the wrongful death act.

Those family members not specifically named in TEX. CIV. PRAC. & REM. CODE ANN. § 71.004(a) cannot bring an action for wrongful death. Thus, in Texas brothers and sisters, uncles and aunts, cousins and other household relatives not listed, have no statutory cause of action. However, other States such as Arkansas may expand the class of relatives who may make a claim. Each State statute should be reviewed.

Upon death, pursuant to the wrongful death statute, a single cause of action for wrongful death may be created or come into existence. The action must be brought by all beneficiaries or by one beneficiary as the representative of the entire class of beneficiaries.

Although all the beneficiaries must be represented, it is not required that each beneficiary have knowledge of the action or give consent to pursue it.

It is not necessary to join a beneficiary against his will if he or she disclaims his or her interest in the suit.

C. Damages

Damages awarded under the Wrongful Death Act are to be “in an amount proportionate to the injury resulting from the death”. TEX. CIV. PRAC. & REM. CODE ANN. § 71.010(a).

The jury, in its verdict, is to divide the damages into shares among the individuals who are entitled to recover and alive at the time. TEX. CIV. PRAC. & REM. CODE ANN. § 71.010(b).

Separate issues should be submitted on damages for each plaintiff and for each element of recovery. TEX. CIV. PRAC. & REM. CODE ANN. § 71.010.

Damages recovered in a wrongful death action are not subject to the debts of the deceased. TEX. CIV. PRAC. & REM. CODE ANN. § 71.011.

Wrongful Death Damages – Claim of Surviving Spouse

The jury is asked what sum of money, if paid now in cash, would fairly and reasonably compensate a wife for her damages, if any, resulting from the death of her husband and is instructed that it may consider the following elements of damages:

a. Pecuniary loss

“Pecuniary loss” means the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value, excluding loss of inheritance, that the spouse, in reasonable probability, would have received from her husband had he lived.

b. Loss of companionship and society.

“Loss of companionship and society” means the loss of the positive benefits flowing from the love, comfort, companionship, and society that the wife, in reasonable probability, would have received from her husband had he lived.

c. Mental anguish.

“Mental anguish” means the emotional pain, torment, and suffering experienced by the wife because of the death of her husband.

d. Loss of inheritance.

“Loss of inheritance” means the loss of the present value of the assets that the deceased, in reasonable probability, would have added to the estate and left at natural death to his wife.

Wrongful Death Damages – Claim of Surviving Child

The jury is asked what sum of money, if paid now in cash, would fairly and reasonably compensate a child for his/her damages, if any, resulting from the death of his/her parent. The jury is instructed that it may consider the following elements of damages:

a. Pecuniary loss

“Pecuniary loss” means the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value, excluding loss of inheritance, that the child, in reasonable probability, would have received from his parent had he lived.

b. Loss of companionship and society.

“Loss of companionship and society” means the loss of the positive benefits flowing from the love, comfort, companionship, and society that the child, in reasonable probability, would have received from his parent had he lived.

c. Mental anguish.

“Mental anguish” means the emotional pain, torment, and suffering experienced by the child because of the death of his parent.

d. Loss of inheritance.

“Loss of inheritance” means the loss of the present value of the assets that the deceased, in reasonable probability, would have added to the estate and left at natural death to his child.

Wrongful Death Damages – Claim of Surviving Parents of Minor Child

The jury is asked what sum of money, if paid now in cash, would fairly and reasonably compensate the mother and father for their damages, if any, resulting from the death of their child. The jury is instructed that it may consider the following elements of damages:

a. Pecuniary loss

“Pecuniary loss” means the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value that the parents, in reasonable probability, would have received from their child had he lived.

b. Loss of companionship and society.

“Loss of companionship and society” means the loss of the positive benefits flowing from the love, comfort, companionship, and society that the parents, in reasonable probability, would have received from their child had he lived.

c. Mental anguish.

“Mental anguish” means the emotional pain, torment, and suffering experienced by the parents because of the death of their child.

Wrongful Death Damages – Claim of Surviving Parents of Adult Child

The jury is asked what sum of money, if paid now in cash, would fairly and reasonably compensate the parents for their damages, if any, resulting from the death of their adult child. The jury is instructed that it may consider the following elements of damages:

a. Pecuniary loss

“Pecuniary loss” means the loss of the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value that the parents, in reasonable probability, would have received from their adult child had he lived.

b. Loss of companionship and society.

“Loss of companionship and society” means the loss of the positive benefits flowing from the love, comfort, companionship, and society that the parents, in reasonable probability, would have received from their adult child had he lived.

c. Mental anguish.

“Mental anguish” means the emotional pain, torment, and suffering experienced by the parent because of the death of their adult child.

Damages for mental anguish and loss of society and companionship are separate elements of recovery. Loss of society “constitutes a loss of positive benefits which flowed to the family from the decedent’s having been a part of it. Mental anguish is concerned not with the benefits {the beneficiaries} have lost, but with the issue of compensating them for their harrowing experience resulting from the death of a loved one”.

The Texas Supreme Court has expressly held that all plaintiffs belonging to the class of statutory beneficiaries under the Act are entitled to recover damages for loss of companionship and mental anguish.

Beneficiaries may recover “the present value that the deceased, in reasonable probability, would have added to the estate and left at natural death to the statutory wrongful death beneficiaries but for the wrongful act causing premature death”. Not every beneficiary sustains a loss of inheritance. If the decedent would have earned no more than he would have used for support, or if the decedent would have outlived the beneficiaries, no such loss would be suffered.

However, loss of inheritance damages were seriously undercut in the Texas Supreme Court’s decision in C& H Nationwide v. Thompson, 903 S.W.2d 315 (Tex. 1994). The court held that to be awarded, damages for loss of inheritance must rest on “evidence that plaintiffs would probably have been the beneficiaries of decedent’s estate, and evidence from which the amount of that estate can reasonably be calculated.” Id. At 324. Further, the court held that it is necessary to do some calculation of this measured of damages because “loss of inheritance damages is economic in nature, and by the requirement in Yowell, only the present value of the amount of the estate should be awarded. Present value is not simply a judgement call by the jury but a mathematical calculation”.

The right to recover exemplary damages is limited to the surviving spouse and “heirs of the body;” parents of the deceased are not entitled to exemplary damages.

Cases filed after September 1, 1987, are subject to a statutory cap on exemplary damages imposed by TEX. CIV. PRAC. & REM. CODE ANN. § 41.007-41.008 of $200,000 or four times the amount of actual damages, whichever is greater. The recovery cap, however, does not apply in cases of malice or intentional tort. Prejudgment interest is not recoverable on exemplary damages.

The wrongful death claim is derived from the cause of action the decedent could have asserted had he lived. Under the Act, the beneficiaries occupy the decedent’s “legal shoes” and may assert any issue in a wrongful death action the decedent would have been entitled to assert. Conversely, any defense which may have been asserted against the decedent had he lived may be asserted in a wrongful death Action. TEX. CIV. PRAC. & REM. CODE ANN. § 71.003(a). Thus, if the negligence of the deceased exceeds fifty percent (50%) of the fault, there can be no recovery.

The doctrine of interspousal immunity has been abolished. Thus, a wrongful death action may be brought by the wrongful death beneficiaries against the injuring spouse.

Evidence of the probable life expectancies of the decedent and the respective wrongful death beneficiaries is admissable to prove the duration of probable financial contributions. Generally it is held that the amount recoverable is the present value of the pecuniary benefits that the beneficiary reasonably expected to receive from the decedent.

Loss of the decedent’s future earning capacity in Texas state courts may be calculated by taking the earning capacity at death and extrapolating if for his life expectancy, taking into account the probable factor of inflation.

II. SURVIVAL CLAIMS

At common law, if either the tortfeasor or the victim died before the victim recovered in tort, the victim’s right to recovery was lost. To avoid this result, the Texas legislature enacted the so-called “survival” statute which is now TEX. CIV. PRAC. & REM. CODE § 71.021.

Unlike the Wrongful Death Act, the survival statute does not create rights in favor of the heirs and estate. The survival statute simply allows recovery for personal injuries held by the victim at the time of his death to be enforced by his heirs or personal representatives of his estate.

Generally, the only cause of action which survives under the survival statute is one for the recovery of damages for personal injuries sustained by the deceased prior to his death.

The “estate” of a deceased person is not an entity. Since an estate is not a legal entity, it does not have the capacity to sue or be sued as such.

Survival actions may be brought by heirs or by the appointed legal representative of the decedent’s estate.

If the deceased left a valid will which names an executor, ordinarily the executor, after having been qualified and receiving letters testamentary, is the lawful personal representative of the estate.

If the deceased died without a valid will or without naming an independent executor and administration is required, the court will appoint either a temporary or “dependent” administrator.

TEX. PROB. CODE ANN. § 233A authorizes executors and appointed administrators to bring suits to recover damages owed to the estate. When such a representative brings suit, the heirs or devisees need not be made parties to the suit.

The legal representative (other than an independent executor or administrator) may not agree to compromise or settle claims asserted on behalf of the estate without approval of the Probate Court TEX PROB. CODE ANN. § 234(a)(4). Representatives may retain an attorney to prosecute the claim but cannot enter into a contingency fee arrangement without court approval. The contingency fee may not exceed one-third of the recovery. TEX. PROB. CODE ANN. § 233.

In order to recover for the physical pain and mental anguish suffered by the injured person prior to his death, it must be established by competent evidence that the decedent was conscious and actually experienced the physical pain and mental anguish for which recovery is sought.

There can be no recovery by the estate for conscious pain and suffering if the decedent was instantly killed or lost consciousness immediately.

Evidence that the decedent was conscious and actually experienced pain may be provided by expert testimony, eye witnesses, or may be inferred from the circumstances surrounding the death.

Medical and hospital expenses which are reasonable and necessary may be recovered in a survival action.

Funeral and burial expenses, as with medical and hospital expenses, may be sought in either a survival or wrongful death action. Plaintiffs must establish that the expenses are necessary and reasonable.

Property damages sustained by the decedent as a result of the incident are recoverable in survival actions.

The right to recover exemplary damages survives the death of both the injured person and the tortfeasor. The Texas Supreme Court holds that claims for exemplary damages can now be asserted by and against the estates of deceased persons.

Survival Damages – Compensatory Damages

The jury is asked what sum of money would have fairly and reasonably compensated the deceased for –

a. Pain and mental anguish.

“Pain and mental anguish” means the conscious physical pain and emotional pain, torment, and suffering experienced by the deceased before his death as a result of the occurrence in question.

b. Medical expenses.

“Medical expenses” means the reasonable expense of the necessary medical and hospital care received by the deceased for treatment of injuries sustained by him as a result of the occurrence in question.

c. Funeral and burial expenses.

“Funeral and burial expenses” means the reasonable amount of expenses for funeral and burial for the deceased reasonably suitable to his station in life.

III. BYSTANDER CLAIMS

This is a claim made by a person who is closely related to the injured party. The injured party must have suffered serious or fatal injuries. Further, the mental anguish suffered by the bystander must have been reasonably foreseeable as determined by three factors: 1) the bystander was located near the scene of the accident, 2) the shock to the bystander must have resulted from a direct emotional impact from a sensory and contemporaneous observance of he accident, and 3) the bystander must have been closely related to the victim. The classic example including all of these elements in the wrongful death or survival context is a car wreck in which the bystander is a passenger and witnesses the death or serious injury of the victim.

The Texas Supreme Court has recently held that there is no bystander cause of action in cases of medical malpractice, holding that a husband could not recover as a bystander to his wife’s in-hospital injuries.

The Court held that while the mother of a stillborn child had a cause of action for her own personal injuries, including mental anguish, she could not recover in a bystander capacity.

IV. INVESTIGATIONS

The family members of seriously injured persons or fatalities are so distraught that frequently evidence disappears or memories fade before a thorough investigation on behalf of the family members may begin. Corporate defendants and insurance companies immediately send out a team with the primary intent of avoiding responsibility and payment. Unfortunately, there have been situations where evidence disappears, witnesses are misled and the family members are clearly at a disadvantage. Therefore, it is extremely important that a family member contact someone and permit an investigation to begin before evidence is destroyed and the scene altered.

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