Accident on 80Wrongful Death Cases Under Chapter 71 of the Texas Civil Practice and Remedies Code
Wrongful Death cases are hard on everyone involved. When a tragedy occurs that results in the loss of life of a loved one, it can be hard to understand what you need to do next. Here is a simple break down of the steps that the family of a deceased individual who has been killed as a result of someone else’s negligence must take in order to secure recovery after a wrongful death occurs.
What is Wrongful Death?
Wrongful death is defined in Texas under Chapter 71 of the Texas Civil Practice and Remedies Code. The Texas Civil Practice and Remedies Code provides a cause of action under the following circumstances:
Sec. 71.002. CAUSE OF ACTION. (a) An action for actual damages arising from an injury that causes an individual’s death may be brought if liability exists under this section.
(b) 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.
(c) A person is liable for damages arising from an injury that causes an individual’s death if:
(1) the person is a proprietor, owner, charterer, or hirer of an industrial or public utility plant or of a railroad, street railway, steamboat, stagecoach, or other vehicle for the transportation of goods or passengers; and
(2) the injury was caused by the person’s or his agent’s or servant’s wrongful act, neglect, carelessness, unskillfulness, or default.
(d) A person is liable for damages arising from an injury that causes an individual’s death if:
(1) the person is a receiver, trustee, or other person in charge of or in control of a railroad, street railway, steamboat, stagecoach, or other vehicle for the transportation of goods or passengers, of an industrial or public utility plant, or of other machinery; and
(2) the injury was caused by:
(A) the person’s wrongful act, neglect, carelessness, unskillfulness, or default;
(B) the person’s servant’s or agent’s wrongful act, neglect, carelessness, unfitness, unskillfulness, or default; or
(C) a bad or unsafe condition of the railroad, street railway, or other machinery under the person’s control or operation.
(e) A person is liable for damages arising from an injury that causes an individual’s death if:
(1) the person is a receiver, trustee, or other person in charge of or in control of a railroad, street railway, steamboat, stagecoach, or other vehicle for the transportation of goods or passengers, of an industrial or public utility plant, or of other machinery; and
(2) the action could have been brought against the owner of the railroad, street railway, or other machinery if he had been acting as operator.
Who May Bring a Wrongful Death Action?
The Texas Civil Practice and Remedies Code makes it clear who may bring a wrongful death action and is defined as follows:
Sec. 71.004. BENEFITTING FROM AND BRINGING ACTION. (a) An action to recover damages as provided by this subchapter is for the exclusive benefit of the surviving spouse, children, and parents of the deceased.
(b) The surviving spouse, children, and parents of the deceased may bring the action or one or more of those individuals may bring the action for the benefit of all.
(c) If none of the individuals entitled to bring an action have begun the action within three calendar months after the death of the injured individual, his executor or administrator shall bring and prosecute the action unless requested not to by all those individuals.
What Type of Damages are Available in a Wrongful Death Action?
The Texas Civil Practice and Remedies Code provides that when the death is caused by the willful act or omission or gross negligence of the defendant, exemplary as well as actual damages may be recovered.Sec. 71.009. EXEMPLARY DAMAGES.
This means that not only can the deceased individual family members recover the actual damages related to the action, such as medical bills and lost wages, etc… but they may also recover punitive damages if the act was done willfully (or intentionally) or will gross negligence.
Most wrongful death actions that include exemplary damages are related to the issue of “gross negligence”. Gross Negligence is defined by the Texas Civil Practice and Remedies Code under Chapter 41 as:
(11) “Gross negligence” means an act or omission:
(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.
This can be anything from texting and driving, driving while distracted, or in as found in most trucking accident cases where gross negligence issues arise, the truck driver was either intoxicated, driving while tired, or was taking some other action that, when the circumstances are weighed, the truck driver knew or should have known were a great danger to other motorists.
Is a Wrongful Death Award Subject to the Debts of the Deceased?
Often times, when a person is killed in an accident, they have other debts, such as a mortgage or other debt. Under the Texas Civil Practice and Remedies Code, the award of a wrongful death case is not subject to the existing debts of the deceased. Tex. Civ. Prac. & Rem Code Sec. 71.011.
Have You Lost a Loved One to a Wrongful Death Accident?
At Guest and Gray, we have helped countless families recover after the wrongful death of a loved one. Our experienced staff of personal injury lawyers in the Dallas, Rockwall and Kaufman County areas are trained in helping families recover the maximum possible amount after the death of a loved one. Our knowledgeable and courteous office staff are trained to guide these families throughout the process and gather all necessary information and evidence to support these claims. When you call Guest and Gray, you will meet with the attorney who will be handling your case, whether it be partner, Scott Gray, rated as a Texas Super Lawyer for Personal Injury law, or associate, David HagEstad, who has helped families recover millions of dollars in settlements.
Guest and Gray’s principal office is located in Forney, Texas, but we have convenient locations throughout the Dallas area, including Rockwall and Plano. We serve the greater Dallas, Texas area, including Dallas, Plano, McKinney, Rockwall, Greenville, Forney, Terrell, Kaufman and all the way to Tyler. We have recovered millions of dollars for families who have lost ones due to someone else’s negligence.
The initial consultation is free, and we take all personal injury matters, including wrongful death, on a contingency basis, meaning that you pay us nothing unless we win your case. Give us a call today and set up a free case evaluation with an experienced personal injury attorney. Don’t wait until the insurance company calls you. Call today and let Guest and Gray begin the process of asserting you and your families rights.
