Do You Have a Wrongful Death Claim?

Looney, Smith & Conrad, P.C. Wrongful Death Attorneys

Wrongful Death Claims in Texas

Since 1995, criminal defense trial attorney Paul Looney has litigated

60 criminal jury trials with zero final convictions

If a person is killed because of the wrongful conduct of another – either a person or a company – the decedent’s heirs and beneficiaries may file a wrongful death action against those responsible.

The Texas Civil Practice and Remedies Code provides the exclusive remedy for wrongful death in Texas, compensating the decedent’s spouse, parents and children for losses they sustained as a result of the decedent’s injury and death.

Originally, wrongful death statutes were created to provide financial support for widows and orphans and to motivate people to exercise care to prevent injuries. A wrongful death action is separate and apart from criminal charges, and neither proceeding affects nor controls the other. This means a defendant acquitted of murder may be successfully sued in a civil action by the victim’s family for wrongful death.

An action for wrongful death may be brought for either an intentional or unintentional act that causes an injury resulting in death. A blow to the head during an altercation that later results in death is intentional. The driver of an automobile who unintentionally causes the death of another in an accident may be held liable for negligence. An individual who, in violation of local law, neglects to enclose a swimming pool in his yard can be held liable for that omission or failure to act if a child is attracted to the pool and drowns.

Wrongful death statutes do not apply to an unborn fetus, as an individual does not have a distinct legal status until he is born alive. However, if an infant is born alive and later dies as a result of an injury that occurred prior to birth, an action may be brought for wrongful death.

Who May Sue

The surviving spouse, children and parents may bring suit. Texas Civil Practice & Remedies Code Ann. § 71.004(b) states if named beneficiaries do not bring an action within three (3) months of death, the executor or administrator of the estate must bring the action on behalf of the beneficiaries unless instructed not to do so by all the beneficiaries.

Texas Civil Practice & Remedies Code Ann. § 71.004(c) states a wrongful death cause of action accrues at death, if it exists at all, and terminates 2 years after death. The two-year statute of limitations from the date of death is absolute.

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, that individual’s executor or administrator may be sued in his place. Texas Civil Practice & Remedies Code Ann. § 71.008(a).

The discovery rule does not apply in wrongful death and survival actions. However, in death cases raising limitations issues in medical malpractice claims, the courts have determined that the longer health care liability statute of limitations (Texas Civil Practice & Remedies Code § 74.251) applies.

Immunity from a Wrongful Death Suit

In the absence of a legal exception, the surviving beneficiaries may sue any person who caused the injuries that precipitated the death.

An exception to this rule has applied to death caused by family members. The family immunity doctrine protects an individual from suit by members of his family. However, this doctrine often prevented surviving children from collecting insurance payments they were rightfully due. Texas, like many States, has discarded family immunity in most cases.

Wrongful death actions against state or local government will be allowed to go forward only if the state has waived its Sovereign Immunity. Sovereign Immunity bars lawsuits against the government without its consent. Since the 1960s, a majority of states including Texas have waived sovereign immunity in many instances. Therefore, if a child drowns in a municipal swimming pool, the parents may be able to sue the city for wrongful death based on negligence.

In Texas, when a wrongful death action is brought against government, there is a strict notice requirement. The plaintiff must promptly notify the government that a lawsuit is contemplated so as to give the government an opportunity to estimate the potential losses to its budget. For more information about this time period, contact a wrongful death attorney at Looney & Conrad, P.C. 24 hours a day, 7 days a week at 281-597-8818. Failure to file a notice of claim precludes the possibility of a lawsuit.

In one of the most widely followed wrongful death suits involving a governmental entity, a federal judge in Texas allowed a suit to be brought against the federal government by family members of the Branch Davidians, a religious sect based near Waco, Texas.

About one hundred plaintiffs sought $675 million in damages from the federal government, alleging the government used excessive force in a standoff with the group at its compound. The standoff ended April 19, 1993, when the sect compound, believed to contain a hoard of weapons, burst into flames killing everyone inside. Included among the deceased were leader David Koresh and 17 children. The judge, Walter Smith, found the federal government was not responsible for the incident and had no liability.

The expertise of our top trial attorney, Paul Looney is well known in the legal community. Paul is a frequently featured commentator on high profile wrongful death cases such as the Branch Davidians case.

When the Texas Legislature allowed Texas municipalities to face lawsuits, it did not extend this governmental liability to all acts of negligence. Only certain events may create governmental liability under the Texas Tort Claims Act. The following entities may be held liable for any injury or harm their actions have caused:

• Airports
• Animal control
• Bridge construction and maintenance
• Cemeteries and cemetery care
• Fire protection and control
• Garbage and solid waste removal, collection and disposal
• Health and sanitation services
• Hospitals
• Jails – establishment and maintenance
• Parking facilities
• Police protection and control
• Recreational facilities, including but not limited to beaches, marinas, and swimming pools
• Regulation of traffic
• Sanitary and storm sewers
• Street construction, design, and maintenance
• Traffic signals, signs, and hazards maintenance
• Transportation systems
• Waterworks
• Water and sewer services

The maximum the State of Texas can be held liable for is $250,000.00 per person, $500,000.00 per single occurrence for bodily injury, and $100,000.00 for property damage. The Texas Tort Claims Act recognizes that government bodies, like all others, should be held responsible for their actions. However, even though the Texas legislature waived governmental immunity and created the possibility of governmental liability, it is still difficult to hold a city or county legally accountable for negligence or wrongdoing.

When you need a Texas Wrongful Death lLwyer, contact

Looney, Smith & Conrad, P.C. at 281-597-8818 or 979-826-8484.  Text Us: 405-388-6191.

Our experienced Texas Wrongful Death Attorneys are available 24 hours a day, 7 days a week for a

free, no-obligation case evaluation.

We serve Houston, the State of Texas and the entire United States.