When a spouse, parent, or child dies in a tragic accident caused by a negligent breach of duty, you may be able to take action against the person who caused the accident. You should work with an attorney to determine if you should file a survival action, a wrongful death claim, or both. We explain the differences here.
Wrongful Death Basics
A wrongful death claim may be brought against the party found to be responsible for the death of your loved one. In Texas, this claim may only be brought by a surviving spouse, child, or parent of the deceased. If it is proven in court that the defendant had a responsibility to keep the deceased safe (known as a duty of care), that he or she breached this duty, and that the breach led directly to the death of your loved one, you may be able to collect damages. In a wrongful death claim, damages are paid directly to the plaintiff and may include the following:
- Loss of wages the plaintiff was dependent on
- Medical expenses incurred by the deceased following the accident
- Emotional suffering of the plaintiff
What Is a Survival Action in Texas?
In a nutshell, a survival action is a claim that could have been filed by the deceased for damages if he or she had survived the accident. This often applies in a situation where the victim lives for a period of time following the accident but eventually dies as a result of injuries sustained in the accident. A survival action may be filed by the deceased’s estate or heirs and is not limited to a spouse, parent, or child. Any damages that would have been awarded to the deceased in a personal injury suit had he survived may be granted to his estate through a survival action. These include compensation for:
- Medical bills
- Pain and suffering of the deceased
- Wages lost between the accident and the death
- Property damage
- Funeral expenses
Once any damages awarded have been paid to the estate, they will pass to heirs as designated in the will.
An Attorney Can Help Sort Out the Differences
In particular cases, survivors may be able to file both wrongful death and survival action claims. An experienced wrongful death attorney can assist in determining whether this situation applies in your case. Call the Button Law Firm to learn more about these actions. We are happy to help!