Wrongful Death, Survival and Bystander Claims in Texas
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.
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 2-year statute of limitations set forth in
the Medical Liability Act 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.
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”.
In 2003 the Texas Legislature amended the Wrongful Death Act to
allow for the recovery of damages for an injury to an individual
born dead. Even if the child was born alive, a wrongful death action
may be maintained even if the injury causing the death was received
in utero. Sadly, the legislature protected a certain class of
individuals and corporations from liability for the death of an
unborn child. The following persons or corporations cannot be sued
for the wrongful death of an unborn child:
(1)
The mother of an unborn child,
(2)
A physician or other licensed health-care
provider, if the unborn child’s death is the intended result of a
lawful medical procedure performed by the physician or health-care
provider with the requisite result,
(3)
A person who legally dispenses or
administers a drug, if the unborn child’s death is the result of the
dispensation or administration of the drug,
(4)
A physician or other licensed health-care
provider licensed in Texas, if the unborn child’s death directly or
indirectly is caused by, is associated with, arises from, or relates
to a lawful medical or health-care practice or procedure of the
physician or health-care provider.
Certain members of the Texas Legislature and many citizens of the
State of Texas who proclaim to be anti-abortionists because they
believe life begins at conception, have exempted certain classes of
people and corporations from liability for the wrongful death of a
viable fetus. Most people who believe in pro-life are not aware that
“physicians and health care providers” may have basic immunity for
the death of an unborn child in Texas due to malpractice.
An example is the immunity given to mothers for the wrongful death
of their unborn child. If a mother is an alcoholic or prescription
drug abuser and she had a wreck and kills her unborn child, why should
she be immune from liability for the death of her unborn child? If
the biological father has a wreck and the unborn child dies as a
result of his negligence, he can be responsible for wrongful death
damages of the unborn child. If a physician or hospital negligently
caused the death of an unborn child, why shouldn’t a physician
and/or hospital be legally responsible for damages? Some people
believe that a mother who aborts her child should be criminally
charged. Why do those same people sit back and allow immunity to a
certain class of persons who negligently cause the death of an
unborn child?
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 informal 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 un-dissolved
marriage renders any later marriage attempted, formal or informal,
void.
A wrongful death 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
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 was 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 judgment 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;” and parents of the deceased are not
entitled to exemplary damages.
Cases filed may be subject to a statutory cap on exemplary damages.
For example, Tex. Civ. Prac. & Rem. Code Ann. § 41.007-41.008 caps
exemplary damages at $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 cap on
exemplary damages may not apply when the negligent driver was
intoxicated and committed intoxicated manslaughter.
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 admissible 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 it 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” mean 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 the 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 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.
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.