If your loved one died as a result of the unreasonably careless acts of another person, you have legal recourse. As explained here by our San Antonio wrongful death lawyers, in addition to claims for negligence and gross negligence, you may be able to pursue wrongful death, survival and bystander claims.
Wrongful Death Cause of Action
A wrongful death cause of action is governed by Texas Civil Practices & Remedies Code §71.002(b), which states that “A person is liable for damages arising from an injury which causes an individual’s death if the injury was caused by that person’s . . . wrongful act, negligence, carelessness, unskillfulness, or default.” A “person” includes a corporation, so a business or other entity may be named as a defendant in a lawsuit and held responsible for your loved one’s death. The following people may bring suit for wrongful death: surviving spouse, children and parents.
In order to bring a wrongful death action as a surviving spouse, you must have been legally married to the deceased person. Texas recognizes two types of marriages. The first is a ceremonial marriage, in which the parties desiring to marry obtain a marriage license from county clerk. The second type of marriage is a “common law” or informal marriage. In this situation, the spouses agree to be married and, after the agreement, they live together as a couple and represent to others that they are married.
“Children” includes children born out of wedlock, as well as adopted children. If paternity is questioned in a wrongful death action, the alleged child will have to prove by clear and convincing evidence that he is, in fact, a child of the deceased.
Adoptive parents can make a claim for wrongful death, but step-parents do not qualify under the law to bring a wrongful death claim.
Survival Cause of Action
If your loved one could have made a claim for personal injuries – e.g., pain and suffering, mental anguish, and medical expenses – prior to his death, then you may have grounds for a “survival” cause of action. In essence, you can stand in for your loved one and pursue those claims, which “survive” his death, on his behalf. The following individuals may bring a survival cause of action: heirs, legal representatives, and the estate of the deceased.
A “bystander’s” claim is a claim for mental anguish resulting from the direct emotional impact of witnessing and/or being present at the time of the accident (as contrasted with learning of the accident from others after its occurrence). To state a claim, the bystander must have been located near the scene of the accident at the time it occurred, and must be closely related to the victim. The victim need not have died in the accident.
Let’s review a few examples, gleaned from various Texas court decisions:
- In one case, a woman who was taken to the accident scene after the fact, and observed her child had died in the accident, could not state a claim because she was too far removed from the scene to be considered a bystander.
- In another case, a cousin could not recover on a bystander’s claim because he was not sufficiently “closely related” to the deceased.
- In yet another case, step-parents could not recover because they were not closely related.
- In contrast, a father who was in the backyard when he heard the impact sound caused by an automobile striking his son and then observed his son’s injuries shortly before he died, could recover on a bystander’s claim because even though he did not actually see the accident occur, he had a sensory perception, e. hearing the sound, at the time of the accident.
Contact a San Antonio Wrongful Death Lawyer
When you are ready to talk about taking legal action in response to the death of your loved one, we are here to help. Our San Antonio wrongful death lawyers will meet with you at your convenience to discuss your specific situation and your options under the law. You can reach us by phone or by email for a free consultation.