Dallas Wrongful Death Lawyer

Attorney Doug Goyen has represented people as a Dallas wrongful death lawyer since 1997. We provide powerful, experienced, and aggressive representation for our clients. You can count on us to get the compensation you deserve for your case.

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Wrongful death can occur in almost any type of negligence case, including car accidents, 18-wheeler accidents, premises liability cases, workplace accidents, and other personal injury cases. In some personal injury cases, the victim is killed as a result of the negligence of another.

Wrongful death cases are handled by a personal injury attorney. Attorney Goyen has decades of experience handling personal injury and wrongful death cases, as well as obtaining compensation for the deceased’s family, estate, and beneficiaries. You need a personal injury attorney who has handled cases involving serious personal injury, catastrophic injury, and wrongful death.

Call us at (972) 599 4100 or contact us on our website contact form.

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WRONGFUL DEATH CASES IN TEXAS

When someone is killed as a result of negligence, there are two types of actions that can be taken. The first type of claim is under the Texas Wrongful Death Act. The second type is under the Texas Survival Statute (on this page below Wrongful Death information).

TEXAS WRONGFUL DEATH ACT ACTIONS IN TEXAS

The following elements are required to prove a case under the Texas Wrongful Death Act:

1. the plaintiff must be a statutory beneficiary listed in the Wrongful Death Act;
2. the defendant may be a person or corporation;
3. the defendant’s wrongful act must have caused the decedent’s death;
4. the decedent would have been entitled to bring suit for the injury if they had lived; and
5. the plaintiff (family member described in the Act) suffered an actual injury. Texas CPRC sections 71.001-71.004, 71.005.

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WRONGFUL DEATH OF AN UNBORN CHILD OR FETUS IN TEXAS

In 2003 the Texas Legislature amended the Wrongful Death Act allowing recovery for damages for an injury to an individual born dead. Tex. CPRC section 71.003(a).

Exceptions: The following persons or corporations cannot be sued for wrongful death based on the death of an unborn child.

1. The mother of the unborn child.
2. A physician or other licensed health-care provider. If the unborn child’s death is the intended result of a lawful medical procedure performed by the physician or health-care provider with the requisite consent.
3. A person who legally dispenses or administers a drug, if the unborn child’s death is the result of the dispensation or administration of the drug.
4. A physician or other health-care provider licensed in Texas, if the unborn child’s death directly or indirectly is caused by, is associated with, arises from, or relates to a lawful medical or health-care practice or procedure of the physician or health-care provider.

WRONGFUL DEATH DAMAGES

In a wrongful-death action, plaintiffs can recover the actual damages suffered. Mayer v. Willowbrook Plaza L.P., 278 S.W.3d 901, 909 (Tex.App.-Houston [14th Dist.] 2009, no pet.). There are four types of damages recoverable in a wrongful-death action:

1. Pecuniary losses (these are financial losses suffered by those covered by the Act).
2. Mental anguish damages.
3. Loss of companionship and society, and
4. Loss of inheritance. Moore v. Lillebo, 722 S.W.2d 683, 687 (Tex.1986).

I. Pecuniary losses that can be recovered are defined as loss of the decedent’s earning capacity, advice, counsel, services, care, maintenance, support, and reasonable contributions of a pecuniary value.

1) Loss of advice and counsel. Plaintiffs can recover for loss of advice and counsel, which includes the financial value of professional recommendations and personal guidance the decedent might have rendered to the plaintiff if the decedent had survived.

2) Loss of services. A jury is given wide discretion in awarding damages for the value of the services lost. C.E. Duke’s Wrecker Serv. v. Oakley, 526 S.W.2d 228, 235-36 (Tex.App.-Houston [1st Dist.] 1975, writ ref’d n.r.e.).

a) Spouses services. Spouses can recover for the loss of their spouse’s services, including household and domestic services. Dougherty v. Gifford, 826 S.W.2d 668, 681 (Tex.App.-Texarkana 1992, no writ)(wife could recover for loss of husband’s services).

b) Parent’s services. Child allowed to recover for the loss of a parent’s services. This includes the value of nurture, care, education and guidance. Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 480 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). The value of the parent’s services can be established by evidence produced regarding their habits and characteristics. John Deer, 773 S.W.2d at 380.

c) Child’s services. Parents are allowed to recover the value of any contributions the deceased child would have made from the time of death until the child would have turned 18 (less the cost of the child’s care, support, education, and maintenance), and then may recover any contributions that the child may reasonably have been expected to have made once they reached the age of majority and after. Jasper Cty. Lumber Co. v. McMillan, 188 S.W.2d 731, 732 (Tex.App.-Beaumont 1945, writ ref’d).

3) Expenses for psychological treatment. Financial (or pecuniary) recovery of the reasonable and necessary expenses to treat the plaintiff’s emotional trauma is allowed. City of Dallas v. Cox, 793 S.W.2d 701, 734 (Tex.App.-Dallas 1990, no writ).

4) Funeral expenses – are debts of the estate of the decedent. These are not usually recoverable under the Wrongful Death Act, but are recoverable under the Survival Statute. Landers v. B.F. Goodrich Co., 369 S.W.2d 33, 34-35 (Tex.1963). BUT, if the statutory beneficiaries actually paid for the funeral expenses they can recover them as part of the Wrongful Death Act. Landers, 369 S.W.2d at 34-35. If recoverable under the Wrongful Death Act, the plaintiff must prove the amount was reasonable. Wackenhut Corr. Corp. v. de la Rosa, 305 S.W.3d 594, 645 (Tex.App.-Corpus Christi 2009, no pet.).

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II. Mental Anguish. Mental anguish and emotional pain of family members. A plaintiff is able to recover damages for mental anguish in wrongful-death cases. Columbia Med. Ctr. v. Hogue, 132 S.W.3d 671, 683 (Tex.App.-Dallas 2004). Wrongful-death cases are the type case where mental anguish is foreseeable. City of Tyler v. Likes, 962 S.W.2d 489, 496 (Tex.1997). In wrongful-death cases mental anguish is the emotional pain, torment, and suffering that the plaintiff would, in reasonable probability, experience from the death of a family member. Moore, 722 S.W.2d at 688.

A jury should consider the following factors in awarding damages for mental anguish. 1) the relationship between the plaintiff and the decedent, 2) the living arrangements of the plaintiff and the decedent, 3) the extended separations of the decedent from the plaintiff, 4) the harmony of their family relations, and 5) their common interests and activities. Moore, 722 S.W.2d at 688.

III. Loss of companionship and society. Loss of companionship, support, and marital relationship – known as loss of consortium for family members. Companionship and society are defined as the positive benefits flowing from the love, comfort, companionship, and society the plaintiff would, in reasonable probability, have experienced if the decedent had lived. Moore, 722 S.W.2d at 688. The jury must consider the following factors in determining the award of damages for this element – 1) the relationship between the plaintiff and the decedent, 2) the living arrangements of the plaintiff and the decedent, 3) extended separations of the decedent from the plaintiff, 4) the harmony of their family relations, and 5) their common interests and activities. Moore, 722 S.W.2d at 688.

IV. Loss of Inheritance. Loss of inheritance for the beneficiaries. Loss of inheritance is defined as the present value that the decedent would in reasonable probability, have added to the estate and left at natural death to the statutory wrongful-death beneficiaries but for the wrongful act causing the premature death. Sanchez v. Mica Corp., 107 S.W.3d 13, 27 (Tex.App.-San Antonio 2002, pet. granted, judgm’t vacated w.r.m).

Exemplary Damages. It is possible to get exemplary damages if the facts show willful acts or omissions or gross negligence in a case. Garrett v. Patterson-UTI Drilling Co., 299 S.W.3d 911, 915 (Tex.App-Eastland 2009, pet. denied).

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WHO CAN MAKE A CLAIM FOR WRONGFUL DEATH?

The following categories of people are able to bring file a lawsuit and pursue damages under the Texas Wrongful Death Act.

• Only people listed in the Act may file a claim. People not listed in the Texas Wrongful Death Act may not bring an action. A wrongful death action may not be brought by family members or individuals who are not expressly named in the code. Tex. Civ. Prac. & Rem. Code Ann. § 71.004(a).
• Children who have been legally adopted are among the statutory beneficiaries. Goss v. Franz, 287 S.W.2d 289 (Tex. Civ. App.-Amarillo 1956, writ ref’d); Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269 (Tex. 1995). Children of an equitable adoption, on the other hand, do not have the right to recover. Goss v. Franz, 287 S.W.2d 289 (Tex. Civ. App.-Amarillo 1956, writ ref’d); Taylor v. Parr, 678 S.W.2d 527 (Tex. App.-Houston [14th Dist.] 1984, writ ref’d n.r.e.). Stepchildren may not sue for the wrongful death of a stepparent, either. Goss v. Franz, 287 S.W.2d 289 (Tex. Civ. App.-Amarillo 1956, writ ref’d).
• Adult children are statutory beneficiaries. Hartzell Propeller Co. v. Alexander, 485 S.W.2d 943 (Tex. Civ. App.-Waco 1972, writ ref’d n.r.e.); P.T. & E. Co. v. Beasley, 698 S.W.2d 190 (Tex. App.-Beaumont 1985, writ ref’d n.r.e.).
• Beneficiaries include legally adoptive parents. Robinson v. Chiarello, 806 S.W.2d 304 (Tex. App.-Fort Worth 1991, writ denied). However, because legal adoption is required, stepparents may not be able to recover for the death of a stepchild unless there has been an adoption. Boudreaux v. Tex. & N.O.R., Co., 78 S.W.2d 641 (Tex. Civ. App.-Beaumont 1935, writ ref’d).
• Illegitimate persons who establish paternity through clear and convincing evidence may be included as statutory beneficiaries. Garza v. Maverick Mkt., Inc., 768 S.W.2d 273 (Tex. 1989); Brown v. Edwards Transfer Co., 764 S.W.2d 220 (Tex. 1988).
• Children born after a parent’s death may file a wrongful death suit. Nelson v. Galveston, Harrisburg & San Antonio Ry. Co., 78 Tex. 621, 14 S.W. 1021 (1890); Garza v. Maverick Mkt., Inc., 768 S.W.2d 273 (Tex. 1989).

Wrongful Death Act causes of action were added by statute in Texas, and they cover the damages caused to the decedent’s family. Plaintiffs would be the decedent’s surviving spouse, parent, or child. The defendant would be one of the types listed in CPRC section 71.002. Family members or individuals not expressly identified in the code may not bring a wrongful death action. Tex. Civ. Prac. & Rem. Code Ann.§ 71.004(a).

A CHILD’S RIGHT TO RECOVER DAMAGES FOR THE DEATH OF A PARENT

A child can make a claim under the Texas Wrongful Death Act for the death of their parent due to negligence or an intentional act for the following types of damages.

Loss of Inheritance. The decedent’s earnings, if any, in excess of what they would have used to support their family, and which, in reasonable probability, would have been added to their estate and left to the legal beneficiary upon their natural death. Yowell v. Piper Aircraft Corp., 703 S.W.2d 630 (Tex. 1986). The claim for future earning capacity vests in the beneficiaries as inheritance damages. Lopez v. City Towing Assoc., Inc., 754 S.W.2d 254 (Tex. App.-San Antonio 1988, writ denied).

Parent-Child Relationship Termination. The love, support, companionship, and society that the child would have received from the parent if they had lived. Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985); Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983). This element can be submitted as “society and companionship.” Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986).

A child’s mental anguish as a result of the death of a parent. Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985); Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983). Grief and bereavement has been submitted as this form of damages. Mo. Pac. Ry. Co. v. Dawson, 662 S.W.2d 740 (Tex. App.-Corpus Christi 1983, writ ref’d n.r.e.). In a wrongful death case, mental anguish is defined for the jury as “the emotional pain, torment, and suffering that the named plaintiff would, in reasonable probability, experience as a result of the death of a family member.” Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986); Russell v. Ramirez, 949 S.W.2d 480 (Tex. App.-Houston [14th Dist.] 1997, no writ).

It is not necessary for mental anguish to manifest physically. Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986). It is not necessary for the plaintiff to have been in the danger zone or have witnessed the accident in order to recover. Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983).

Financial Loss As a Result of the Parent’s Death. The care, maintenance, support, services, education, advice, counsel, and reasonable contributions of monetary value that the child would have received from the parent had he or she lived, excluding loss of inheritance.

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DAMAGES RECOVERABLE FOR A SPOUSE’S WRONGFUL DEATH

A surviving spouse can recover the following damages for the death of their spouse under the Texas Wrongful Death Act.

Loss of Inheritance includes the decedent’s earnings, if any, in excess of what they would have used to support themselves and their families, as well as what would have been added to their estate and left to legal beneficiaries at the decedent’s natural death. Yowell v. Piper Aircraft Corp., 703 S.W.2d 630 (Tex. 1986). The claim for future earning capacity vests in the beneficiaries as loss of inheritance damages. There is no double recovery because the estate cannot recover for loss of future earning capacity. Lopez v. City Towing Assoc., Inc., 754 S.W.2d 254 (Tex. App.-San Antonio 1988, writ denied).

Pecuniary/Financial Loss As a Result of the Spouse’s Death. The care, maintenance, support, services, advice, counsel, and reasonable monetary contributions that the spouse would have received from the other spouse had they lived.

The Husband-Wife Relationship Termination. The surviving spouse’s love, affection, solace, comfort, companionship, society, assistance, and sexual relationship since the death of their spouse, and which the surviving spouse would have received from the other spouse had they lived. Mo. Pac. R.R. Co. v. Vlach, 687 S.W.2d 414 (Tex. App.-Houston [14th Dist.] 1985, writ ref’d n.r.e.). This type of damage also includes loss of consortium., 572 S.W.2d 665 (Tex. 1978); Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983). This element can be submitted as “society and companionship.” Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986).

As a result of the death of a spouse, the person experienced mental anguish. Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985). This type of damage was also submitted as grief and bereavement, and it was approved. Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986).

It is not necessary for mental anguish to manifest physically. Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986). It is not necessary for the plaintiff to have been in the danger zone or have witnessed the accident in order to recover. Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983).

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PARENTS CAN RECOVER DAMAGES FOR THE WRONGFUL DEATH OF A CHILD

The following types of damages can be recovered by a parent for the death of a child under the Texas Wrongful Death Act.

The Parents’ Mental Anguish as a Result of the Minor Child’s Death. Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983). This element of damages was also submitted and approved as grief and bereavement. Mo. Pac. R.R. Co. v. Dawson, 687 S.W.2d 740 (Tex. App.-Corpus Christi 1983, writ ref’d n.r.e.). In a wrongful death case, mental anguish shall be defined for the jury as “The emotional pain, torment, and suffering that the named plaintiff would in all likelihood experience as a result of the death of a family member”. Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986).

It is not necessary for the plaintiff to have been in the danger zone or have witnessed the accident in order to recover. Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983). It is not necessary for mental anguish to manifest physically., 722 S.W.2d 683 (Tex. 1986).

Financial/Pecuniary Loss As a Result of the Child’s Death. This includes the minor’s earnings before the age of eighteen and the reasonable cash value of such services rendered for the parents before the age of eighteen, less the cost of raising the child; plus the reasonable cash value of future contributions, services, advice, and counsel rendered to his parents after the age of eighteen. Texas Pattern Jury Charges PJC 29.6.

Termination of the Parent-Child Relationship. The minor’s love, support, companionship, and society that each parent would have received if they had lived. Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983). This element could be better submitted as “companionship and society.” Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986). According to the Texas Supreme Court, this element of damage, “companionship and society,” is to be defined as “The positive benefits derived from the named plaintiff’s love, comfort, companionship, and society if the decedent lived.”

PARENTS CAN RECOVER DAMAGES FOR THE WRONGFUL DEATH OF AN ADULT CHILD

The following damages can be recovered by the parents of an adult child under the Wrongful Death Act in Texas.

Parents’ Mental Anguish as a Result of the Death of an Adult Child. Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985); Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983). This type of damage can also be claimed as grief and bereavement. Mo. Pac. Ry. Co. v. Dawson, 662 S.W.2d 740 (Tex. App.-Corpus Christi 1983, writ ref’d n.r.e.). Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986).

It is not necessary for mental anguish to manifest physically. Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986). It is not necessary for the plaintiff to have been in the danger zone or have witnessed the accident in order to recover. Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983).

Financial/Pecuniary Loss As a Result of the Death of an Adult Child. The care, maintenance, support, services, advice, counsel, and reasonable monetary contributions that the parents would have received from the adult child had they lived. Texas Pattern Jury Charges PJC 29.6.

Parent-Child Relationship Termination. The love, comfort, companionship, and society that each parent would have received from their adult child if they had lived. Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985); Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983). This can be submitted as “companionship and society.” Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986).

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WHAT WE DO FOR OUR CLIENTS IN WRONGFUL DEATH CASES

In wrongful death cases, our law firm assists in recovering each element of damage owed by the defendant. Your claim includes lost income, support and companionship, and funeral expenses. Each element of damage caused by the defendant who caused the wrongful death must be paid for by the defendant. In wrongful death cases, we fight for our clients to ensure they receive full compensation for all damages owed.

The untimely and unexpected death of a loved one as a result of negligence is difficult – not only emotionally, but also financially. Nobody wants to think about the financial aspect of a loss, but when the bills start piling up, you have no choice. Filing a lawsuit is usually one of the last things on most people’s minds. Many people are put off by the prospect of suing for monetary compensation for their losses. However, as the bills pile up, people are eventually forced to confront the harsh reality of the financial consequences of their loved one’s death.

If you need a personal injury lawyer for your wrongful death case contacts us to speak with an experienced personal injury attorney today for a free consultation. Call the Law Office of Doug Goyen at (972) 599 4100 or contact us on our website contact form.

STATUTE OF LIMITATIONS FOR A WRONGFUL DEATH ACT CASE

The statute of limitations under the Texas Wrongful Death Act is two years from the date the case accrued (typically this is the date of death with regards to the Wrongful Death Act). The case must either be settled, or a lawsuit filed before two years or you forever lose any rights to pursue a claim.

Compare this to the Texas Survival Statute – the statute of limitations for the Texas Survival Statute is two years from the date of the occurrence that caused the injury that lead to the death of the decedent. This is often a different date than when the decedent actually dies. An injury may occur, and the decedent may have lived for days, weeks, or even months or longer before they succumb to the injury. This type situation creates two different statutes of limitations for the different causes of action available to due to the wrongful act that caused the death.

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TEXAS SURVIVAL STATUTE – SURVIVAL CAUSE OF ACTION

The Texas Survival Statute allows a Survival cause of action that recovers damages for the injuries suffered by the decedent (the cause of action they would have had if they had survived their injury). Plaintiffs would be the personal representative of the estate or heirs. The defendant would be the person or entity that caused the injury listed in CPRC section 71.021(a).

The following elements can be used to demonstrate a survival cause of action:

1. Plaintiff is the executor of the decedent’s estate;
2. Prior to their death, the decedent had a cause of action for personal injury to their health, reputation, or person;
3. If the decedent had lived, they could have brought an action for injury.
4. The decedent was injured as a result of the defendant’s wrongful act. Texas CPRC section 71.021, Mayer v. Willowbrook Plaza L.P., 278 S.W.3d 901, 909 (Tex.App.– Houston [14th Dist.] 2009, no pet).

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TEXAS SURVIVAL STATUTE DAMAGES ALLOWED

The following damages are allowed in a Texas Survival Act cause of action:

1. Pain and suffering and Mental Anguish. Damages for pain and mental anguish are recoverable in a survival action to the extent that the decedent had some awareness of impending death. Malone & Hyde, Inc. v. Hobrecht, 685 S.W.2d 739, 745 (Tex.App.-San Antonio 1985, writ dism’d)(evidence of physical deterioration suffered during month of declining health and after drug overdose was sufficient to show awareness).
2. Medical Expenses. Reasonable medical expenses are recoverable in a survival action. Folsom Invs. v. Troutz, 632 S.W.2d 872, 876 (Tex.App.-Fort Worth 1982, writ ref’d n.r.e.).
3. Funeral Expenses. Funeral and burial expenses are recoverable in a survival cause of action. The expenses must be proven and shown to be reasonable. Edwards Transfer Co. v. Brown, 764 S.W.2d 249, 250 (Tex.App-Dallas 1987, no writ);
4. Exemplary Damages. Exemplary damages can be recovered is a survival action. Hofer v. Lavender, 679 S.W.2d 470, 475 (Tex.1984).
5. Interest, Court Costs, Attorneys Fees. Prejudgment and post judgment interest can be recovered, Court costs can be recovered. Attorneys fees may be recovered if it falls under the DTPA – but generally most personal injury cases do not allow recovery of attorneys fees in Texas.
6. Damages are distributed among estate (heirs). Damages in a survival case belong to the estate and are distributed to those who would have received them if the decedent had obtained them immediately before death. Russell v Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex.1992). The proceeds are distributed to the heirs according to the decedent’s will, or according to the laws of descent and distribution if they died intestate. Tex. Prob. Code section 37 (outlining passage of title upon intestacy and under will).
7. Damages are subject to debts. Damages in a survival action are subject to the decedent’s debts (unlike damages in a wrongful-death action, which are not). Harris Cty. v. White<, 823 S.W.2d 385, 388 (Tex.App.-Texarkana 1992, no writ).

STATUTE OF LIMITATIONS OF A TEXAS SURVIVAL STATUTE LAWSUIT

The statute of limitations under the Texas Survival Statute is the same as it would have been had the decedent not died. In the case of tort claims or personal injury cases, this typically is 2 years from the date of the incident that caused the harm.

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TYPES OF CASES WE HANDLE

The Law Office of Doug Goyen handles personal injury cases throughout the state of Texas. This includes:

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