Wrongful death actions

Two separate actions may be brought when wrongfully inflicted injuries lead to a person’s death. The first one is based on the Wrongful Death Act. This act provides a statutory cause of action for the surviving spouse, children, and parents of the deceased. The act is intended to compensate them for the losses suffered as a result of the wrongful death. There is no common law wrongful death cause of action.

The other action which can be brought because of wrongfully inflicted injuries which result in death is a common-law action for damages sustained by the deceased. If not for the death, no statutory authority would be necessary to support the action. The Survival Act provides that most actions for personal injuries do not stop or abate because of the death of the tortfeasor or the victim.

The wrongful act, carelessness or negligence which forms the basis of liability in a wrongful death action must be of such degree or character that the act would have allowed the injured party to maintain an action for the injuries if he had not died. The defendant may present any defense which would have been available in a suit brought by the deceased. Since wrongful death actions are seen as derivative of the deceased’s rights, plaintiff stands "in the legal shoes of the decedent. Accordingly, wrongful death claims are not allowed when the deceased’s action would have been barred because of governmental immunity.

The defenses of justifiable homicide and self-defense may be raised in wrongful death actions. In 2007, legislation expanded the right of a person to use force, including deadly force, in self-defense and to prevent murder, sexual assault, aggravated sexual assault, robbery, aggravated robbery and aggravated kidnapping.

In a wrongful death action, recovery of actual damages may be reduced or even barred because of the responsibility of the deceased or a beneficiary, or both, for the death. The wrongful death action may only be brought by the statutory beneficiaries, not by other surviving relatives, such as brothers or sisters.

Contact Galveston wrongful death lawyer Scott Nelson if a loved one has been killed by someone’s negligent activities and you need counsel.  Also serving Corpus Christi, Laredo, Brownsville and all of Texas.