When a loved one has passed away, it can be incredibly difficult to grieve the loss you have suffered. Mourning someone who has passed due to natural causes is hard, but it can be even more painful when someone has died due to the negligence of another. Negligent death, also known as wrongful death, is the death of someone due to the fault of another person or entity. The surviving family members can bring suit against the at-fault individual or entity to help compensate them for associated damages having to do with their loved one’s death. While this sounds straightforward, there are certain ambivalences in the law, which can cause complications. If you have lost a loved one due to the negligence of another, it is important that you act right away. Call Todd R. Durham for assistance with your negligent death case. To help inform our clients, we have put together this resource guide to assist you in educating yourself about the process and what you can expect in a wrongful death case.
Definition of Wrongful Death
A wrongful death suit is a case brought in civil court by the family members of the person who was killed. Texas’ wrongful death law can be found in Texas Civil Practice and Remedies Code Title 4, Chapter 71. This law serves as a basis on what wrongful death consists of and how to bring a wrongful death action. In Section 71.002 (b), it describes the cause of action leading to a case of wrongful death: “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.” Describing exactly what this means will take a bit of explanation. First, you will need to prove a case of negligence.
Proving Negligence in Wrongful Death
For a case to be considered a wrongful death, there has to be fault at play. Negligence is a legal method of showing fault for someone’s actions or inactions that cause injury. There are specific elements for proving negligence, which includes…
Proving these elements can be extremely complicated and are intensely fact-heavy. It is important that we look at each of these requirements individually to be able to determine whether the defendant is negligent in your loved one’s death.
Duty of Care
Duty of care is one of the most complicated aspects of negligence. The general rule is everyone owes the public at large a duty to act reasonably. Some people in society owe a special duty to someone else. This includes the special duties a parent owes their child to protect them. Certain professions owe their clients a heightened duty such as doctors and lawyers, due to the vulnerabilities and confidences that are held in that type of professional relationship. To prove a case of negligent death, you have first to show that the defendant owed the deceased at least a general duty of care.
Once you have established that there was a duty owed to the person who was killed, you have to prove that the duty was subsequently breached. For example, an average person who drives a car owes everyone on the road an obligation to drive reasonably. By operating the vehicle at excessive speeds or driving erratically, the driver is breaching their duty to everyone else on the road.
There are some circumstances (such as in strict liability cases) where breach is imputed or assumed, and there is no need to show that they breached a duty. Strict liability is typically used in circumstances of products’ liability when a product had an unreasonably dangerous defect. However, strict liability only applies to a particular class of cases. In most negligence cases, breach must be established.
Next you must prove that the defendant’s breach was the cause of the injury and death of your loved one. There are two types of causation: actual and proximate. Actual causation is also known as “but for” causation. Meaning, but for the defendant’s breach, there would be no injury. Simply, if the defendant never breached their duty, your loved one would be alive. Actual causation is establishing a direct link between the defendant’s action (or inaction) and the damages you and your loved ones have suffered.
Proximate causation determines whether the damages were a foreseeable consequence of the breach. Put plainly, whether your loved one’s death was foreseeable from their action or inaction. For example, it is foreseeable that driving recklessly at a high rate of speed could cause a deadly car accident. This requirement was created so that unforeseeable interventions could not create liability for something outside the person’s control. For example, if someone provided candy to someone else who had an allergic reaction, and then they ran into the street, and a car struck them. When the person offered the candy, it was not foreseeable that a car would hit them and kill them.
Establishing causation can be tricky, and that is why you need a knowledgeable attorney to assist you with your case. Once you have established duty, breach, and causation, you then must show the court that the deceased and your family have suffered damages.
Types of Damages
When you bring a case of wrongful death, you need to establish that your family member who has died and those left behind have suffered damages. In wrongful death, proving at least some damages is easy because of the resulting death that followed. However, a good attorney will work hard to ensure that you get the maximum compensation for each of the many types of damages your family has endured. In Texas, there are a few types of damages you can expect to receive in a wrongful death case. These include actual damages, exemplary damages, and legal costs. To fully understand damages, you must grasp the differences between each type and where specific costs may fall.
Actual damages are also known as compensatory damages. They serve to compensate the family for injury and the resulting death. There are two types of actual damages, general and special. General damages are the direct result of the defendant’s wrongful action or inaction. General damages include pain and suffering, mental distress, and physical injuries.
Special damages are the damages that result as a foreseeable consequence of the defendant’s wrongful action or inaction. This includes continuing mental anguish, medical expenses, lost wages before death due to injury and after death, and loss of household services. To receive special damages, your attorney will have to plead for then specifically.
Loss of consortium damages also falls under actual damages. Loss of consortium is a type of compensation for the family or spouse of the person who was wrongfully killed. There are some personal considerations to make before making a loss of consortium claim. You should discuss this issue thoroughly with your attorney.
According to Texas Civil Practice and Remedies Code Title 4, Chapter 71, Section 71.009, “When the death is caused by the wilful[sic] act or omission or gross negligence of the defendant, exemplary as well as actual damages may be recovered.” Exemplary damages, also known as punitive damages, are awarded when there was gross negligence, outrageous misconduct, or specific intent malice caused the death of your loved one. These types of damages are very different from general or special damages, as they aren’t meant to compensate but rather to punish the defendant.
You have to prove a case for exemplary damages by showing that the defendant’s conduct (or inaction) was intentional or incredibly egregious as to rise to gross negligence. Gross negligence means that the defendant knew that their action had a high degree of risk of harm but proceeded with their action regardless. (TEX. CIV. PRAC. & REM. CODE §41.001(7)(B)) Your attorney will work with you in collecting the evidence and putting together the right legal strategy. If the facts in your case warrant pleading for exemplary damages, an experienced attorney can help you get the compensation you deserve.
Who Can Sue for Wrongful Death?
After your loved one has died, you may be researching how exactly you can bring a case for wrongful death. According to Texas law, only spouses, children, and parents can bring a case for wrongful death. They may file it individually or together as a group. Siblings are unable to bring a suit for the death of a brother or sister.
Some more complicated situations arise when it comes to eligibility for bringing a suit for wrongful death. If you and your spouse were separated at the time of their death, you could still sue for wrongful death. If you are an adopted child who has been legally adopted, you can bring a suit for your adopted parent, but not your biological one who relinquished parental rights. There may be circumstances and facts in your case that may complicate who can file for wrongful death. If you have specific questions, it is important you talk with an experienced attorney.
When Can I File a Wrongful Death Suit?
When you are filing for wrongful death, you are subject to the statute of limitations for that suit. The statute of limitations is simply a time limit that you have to abide by to file your suit. In Texas, you have two years since the date of the person’s death to file your case. While that seems like a long period of time, it can take time to find the right attorney and gather evidence to put together a sound legal strategy. That is why it is important to seek the advice of a wrongful death attorney as soon as possible.
Finding a Wrongful Death Attorney
So you have decided to file a wrongful death suit after the passing of a parent, spouse, or child. Now the hard part becomes trying to find the right wrongful death attorney. There are numerous online resources to find the perfect attorney to help you. Online sites such as Avvo, Yelp, and your local bar association’s directory can be a great place to start. You will want to research each attorney for his or her experience, knowledge, and skill. You want someone who can be compassionate towards you and your family but an aggressive advocate in the courtroom. The best way to gauge if an attorney is a good fit is to meet them in person and schedule an initial consultation.
A consultation is a brief meeting in which you will meet with the attorney and discuss the facts of your case, and they can provide you with their strategy on how to move forward with your case. Most attorneys offer this service free of charge as a way of introducing themselves and hearing about your case. Some lawyers require a small fee for their time. Utilize this time to ask questions about their experience in wrongful death and any concerns you may have with your case. During the meeting, you should get a good sense on whether they would be a good fit for your situation.
If you decide to hire the attorney after the consultation, you will sign a client contract that will discuss payment, fees, the scope of their representation, and other relevant information that you need to know about the client-attorney relationship. Thoroughly read the contract before signing. Once you have hired a wrongful death attorney, you can begin to pursue the justice your loved one and your family deserve.