What is Wrongful Death?

The State of Texas considers wrongful death to be when:

  • An injury causes a person’s death or a fetus’s failure to be born while alive
  • The injury is caused by another’s “wrongful act, neglect, carelessness, unskillfulness, or default” and
  • The party would have been entitled to file a personal injury lawsuit if they had not perished

Many types of events may be the basis for a wrongful death lawsuit, such as:

  • Negligence-based incidents
  • Medical malpractice
  • Intentional acts

Who Can File a Wrongful Death Claim?

A decedent’s surviving spouse, children, parents, or any combination of those individuals may file a wrongful death claim on behalf of them all. If the family of the deceased individual chooses not to file a claim within three months of the date of death, then the personal representative or administrator or the deceased’s estate can file the claim instead. This is the case unless all of the surviving family requests that there be no wrongful death lawsuit filed.

How is Fault Determined in a Wrongful Death Claim?

In a wrongful death claim, fault is established based on the legal principle of negligence. Establishing negligence relies on proving the following four basic elements:

  • Duty of care: This is the inherent legal obligation that is imposed on all individuals to adhere to a standard of reasonable expectation of care.
  • Breach of duty: A breach of duty occurs when a person fails to meet their duty of care and acts in a way that a reasonable person would not act in a similar circumstance.
  • Causation: This element revolves around the relationship between the breach of duty directly resulting in harm or death.
  • Resultant damages: These are the actual, established losses or harms that are the result of the breach of duty.

What is Comparative Negligence?

The State of Texas enforces a legal principle, comparative negligence or comparative fault, that describes proportionate responsibility for injuries. This principle allows for fault to be shared among multiple parties and aims to distribute responsibility proportionately to each party’s amount of fault.

Under the comparative negligence law, an injured party can recover damages as long as their contribution to the accident is 50% or less. However, total compensation will be reduced based on the percentage of fault. This means that if an injured party is awarded $100,000 in damages and is found to be 40% at fault for the accident, then the injured party will receive a total of $60,000, which is the awarded amount minus 40% for fault.

If an injured or deceased party is found to be more than 50% at fault for an accident, then they will be barred from recovering any damages.

What Factors Determine Comparative Negligence?

Key factors considered when comparative negligence is determined are:

  • Evidence of negligence: A court will consider the evidence presented to determine each party’s degree of negligence.
  • Credibility of witnesses: Witnesses play a critical role in establishing a case’s facts and determining each party’s level of responsibility, especially when one party is deceased.
  • Expert opinions: Specialists in accident reconstruction or medical professionals can be called upon to provide their expert opinion on the fault or negligence of both parties.
  • Contributory actions: The court will consider the injured party’s contributory actions that aided in the accident or resulting injuries or death.

What Challenges and Strategies Help to Prove Comparative Negligence?

Establishing comparative negligence requires strong evidence supporting the claim. Here are some strategies that may help to prove comparative negligence:

  • Gathering evidence: Evidence such as photographs, medical records, witness reports, and expert testimonies can help decide the degree of fault for each party.
  • Witness statements: Statements from witnesses who are able to support the claim of comparative negligence are useful for the case.
  • Expert testimony: Expert witnesses who are able to provide professional opinions and analyses to support claims of comparative negligence are also useful.
  • Legal representation: The assistance of an experienced personal injury attorney is crucial for a strong case. Call Morgan Borque, Attorney at Law, today.

What Damages Can Be Recovered in a Wrongful Death Case?

Damages that are awarded in a wrongful death case go to the deceased person’s surviving spouse, children, or parents for the losses resulting from the death. Compensation ranges based on injuries experienced by the survivors, including:

  • Loss of income or other financial support
  • The value of lost household services normally provided by the deceased
  • The mental pain and anguish of the survivors
  • Lost love, companionship, comfort, and society
  • The value of lost savings or inheritance
  • Punitive damages: Also known as exemplary damages, these damages are not meant to compensate a grieving family but to punish the responsible party and deter similar acts of egregious recklessness in the future.

How Long Do I Have to File a Wrongful Death Claim?

The deadline or statute of limitations for filing a personal injury case in Texas is two years from the date of the death unless:

  • The deceased party is a minor child
  • Negligence of the responsible party was unknown during the two-year period
  • A mental or physical impairment of the injured party prevented filing during the two-year period
  • Fraud

Do I Need an Attorney?

If you have lost a loved one due to another person or entity’s negligence, you need experienced legal help you can depend on. Call Morgan Bourque, Attorney at Law, today at 713-766-3733 or fill out a contact form for a free consultation.