Wrongful Death and Survival Actions
Wrongful death and survival statutes are designed to help the family member of a deceased recover for damages and injuries.
In Texas, two potential causes of action exist for the family members of the deceased.
A wrongful death action is a lawsuit available to a surviving spouse, children and parents of the deceased. CPRC § 71.004. Under the Wrongful Death Act, beneficiaries are able to recover personally for the damages they incur as a result of the loss of their loved ones and not the actual injuries sustained to the deceased as in a survival action. Importantly, the law is strictly construed to only allow recovery to the surviving spouse, children, and parents of the deceased.
The second of these is the Texas Survival Statute. This statute allows an estate, heirs, or legal representative to bring a survival action. CPRC § 71.021(b). The Survival Statute is so named because it allows a personal injury lawsuit to “survive” the death of a person and is prosecuted in the same manner as an ordinary personal injury lawsuit where the injured person had lived. CPRC §71.021(c). Essentially the family is standing in the deceased's shoes in regard to legal rights. Thus, damages such as medical bills, property damage, lost wages, funeral expenses and the like are available under this statute and the recovery will be given as part of the deceased’s estate.
In order to bring a successful wrongful death lawsuit, four things must be shown:
1. A person has died.
2. The deceased died as a result of the defendant’s negligence.
3. The deceased is survived by immediate family members, such as a spouse or children.
4. The surviving family members have suffered a monetary loss as a result of the victim’s death.