There are few things more painful than the death of a loved one. And when that death is the result of another’s negligence, most presume that the law will provide a remedy. But this was not always the case in Texas, and to this day Texas law places limits upon whom may recover for a wrongful death.
Historically, there was no cause of action in Texas for the death of another, as any such claims ended with the individual’s death. See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 356 (Tex. 1990). This all changed upon Texas’ enactment of its first Wrongful Death Statute in 1860. Id. at 356, n. 7. But being a creature of statute, the scope of any recovery for wrongful death remains bound to the provisions of the statute. As currently drafted, the Texas Wrongful Death statute provides in part:
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 his agent’s or servant’s wrongful act, neglect, carelessness, unskillfulness, or default.
TEX. CIV. PRAC. & REM. CODE 71.002(b).
The Act further places limits upon which parties may recover for such a death. First, recovery may be had on behalf of the deceased by his or her estate for the injuries suffered prior to death – a so-called “survival” cause of action. See TEX. CIV. PRAC. & REM. CODE 71.021. This generally amounts to medical expenses and conscious pain and suffering prior to death, as well as funeral expenses. The Act further allows for specific family members to recover for their own injuries suffered as a result of such a death. But the scope of the parties as to whom such relief is available is expressly limited to: “the surviving spouse, children, and parents of the deceased.” TEX. CIV. PRAC. & REM. CODE 71.004(a). Only these individuals have a claim for the death of a loved one.
Some of the limitations which flow from the limited scope of the Act are obvious. For example, grandchildren, since not expressly enumerated, are excluded from the scope of the Act and have no right to recover for the death of a loved one. See e.g. Norris v. Triumph Hosp. of E. Hous., L.P., 2014 Tex. App. LEXIS 6347, at *5 (Tex.App.—Hopuston [14th Dist.] 2014, no pet.) (“We agree that grandchildren do not have standing to bring a suit under the Wrongful Death Act because they are not among the statutorily designated persons who can bring such a claim.”). Similarly, siblings may not recover for wrongful death. See Castillo v. Hidalgo Cty. Water Dist. No. 1, 771 S.W.2d 633, 635 (Tex.App.—Corpus Christi 1989, no writ) (“Brothers and sisters of the deceased are without standing to bring suit under the act.”). Some limitations are less obvious. For example, step-children likely do not have standing to bring a wrongful death
1Soon after adoption of the Wrongful Death Act, the Texas Constitution was amended to recognize a right to recover exemplary damages for ‘homicide’ caused by a willful act or omission or gross neglect.(See TEX. CONST. art. XVI, § 26.)
claim (unless legally adopted)2, nor do the children of individuals whose parental rights have been terminated3.
In the event a loved one has died from the negligence of another, it’s important to protect your rights. The qualified lawyers at BAILEY & GALYEN can tell you if the Texas Wrongful Death Act allows for a recovery under your particular facts.
1See e.g. Goss v. Franz, 287 S.W.2d 289, 290 (Tex.Civ.App.–Amarillo 1956, no writ).
2See e.g. LG Elecs., USA, Inc. v. Grigg, 424 S.W.3d 804, 809 (Tex.App.–Tyler 2014, no pet.).
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