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[i].

A wrongful death occurs when a person is killed due to the negligence or other liability of a person or entity.  The basic elements of a wrongful death claim are:

• Death caused, in whole or in part, by the conduct of another person or entity.
• Person or entity was negligent, or strictly liable, for victim’s death.
• There are surviving beneficiaries or dependents.
• Monetary damages have resulted from individual’s death.

In instances of wrongful death, surviving beneficiaries and dependents are entitled to monetary damages. A wrongful death action is separate and distinct from a survival action, where the individual’s cause of action for injury to his/her health, reputation or person survives in favor of his/her heirs, legal representative, and estate[ii].  “A person is liable for damages arising from an injury that causes an individual’s death if the injury was caused by the person/agents or servant’s wrongful act, neglect, carelessness, unskillfulness or default[iii].”  Suit may be brought under the Act “only if the individual injured would have been entitled to bring an action for the injury if s/he had lived[iv].”  Under Texas law, plaintiffs bringing a wrongful death action are in the procedural shoes of the victim.  Moreover, 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 s/he 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/her place[v].  The surviving spouse, children and parents may bring the suit[vi].  If named beneficiaries do not bring an action within three 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[vii].

A wrongful death cause of action accrues at death, two years from death.  The two-year statute of limitations is absolute from the date of death.  The “discovery rule” does not apply in wrongful death and survival actions.  When the death is caused by the wilful act or omission or gross negligence of the defendant, exemplary as well as actual damages may be recovered[viii].  The jury may award damages in an amount proportionate to the injury resulting from the death.  The damages awarded shall be divided, in shares as found by the jury in its verdict, among the individuals who are entitled to recover and who are alive at that time[ix].

 [i] Tex. Civ. Prac. & Rem. Code § 71.004

[ii] Tex. Civ. Prac. & Rem. Code §71.021

[iii] Tex. Civ. Prac. & Rem. Code §71.002

[iv] Tex. Civ. Prac. & Rem. Code §71.003

[v] Tex. Civ. Prac. & Rem. Code §71.008

[vi] Tex. Civ. Prac. & Rem. Code §71.004

[vii] Id.

[viii] Tex. Civ. Prac. & Rem. Code § 71.009

[ix] Tex. Civ. Prac. & Rem. Code § 71.010