Law Office of Scott A. Nelson, P.C.

Survival actions are often brought along with wrongful death actions. A personal injury action does not abate, or end, because of the death of the injured party or the person causing the injury. When the injured party dies, the action survives and is then brought in favor of the deceased’s heirs, estate and legal representative. Just as with any other claim, a plaintiff bringing a survival action on behalf of a decedent must have both legal capacity to sue and standing.

An heir has capacity to bring a survival action when the decedent’s personal representative either will not or cannot bring the suit, or when the representative’s interests are different or antagonistic to that of the estate.

There is not a survival action for the death of a fetus. A child must be born alive for there to be a survival action. However, parents have various remedies under the Wrongful Death Act for the death of a fetus. Additionally, damages relating to the mother’s mental anguish because of her negligent treatment may be recovered.

Under the survival statute, the damages recoverable are limited to the damages suffered by the decedent prior to his death. Accordingly, the legal representatives or heirs of an estate may recover for the physical pain, suffering, and property damage suffered by the deceased prior to his death.

Circumstantial evidence may be used to establish the existence of conscious pain and suffering by the deceased. Moreover, pain and suffering may be presumed or inferred as a result of severe injuries. There needs to be some degree of consciousness to support an award of pain and suffering. However, the consciousness does not have to be complete. In one case, five seconds of conscious pain suffered by a minor who was electrocuted was enough to support a pain and suffering award.

The judge or jury may award money damages for the decedent’s mental suffering, as well as for the physical pain and suffering.

The Nelson law firm represents clients in Corpus Christi, Brownsville, Houston, Galveston, Laredo, and all of Texas. Contact South Texas wrongful death lawyer Scott Nelson if you need help with a wrongful death lawsuit.

A decedent’s minor child may recover an money damages representing the amount the decedent would reasonably have contributed to the child’s maintenance and "the value of the services which the (deceased parent) in reasonable probability would have rendered them in training, advising and educating them." Similarly, the adult children of a decedent may receive damages for the loss of expected contribution from a parent. There is no need to show evidence of exact amounts of money received or expected to be received form the decedent.

A deceased parent’s children can also recover damages under the Wrongful Death Act for the loss of their parent’s companionship, as well as for mental anguish caused by the death of their parents. Recovery of damages for mental anguish does not depend on the child’s mental anguish manifesting itself physically.

The surviving spouse and the decedent’s biological heirs may also receive exemplary, or punitive, damages in a wrongful death case where the defendant’s conduct was grossly negligent, willful, malicious or fraudulent. Surviving parents cannot receive exemplary damages for wrongful death. Surviving parents may, of course, receive actual damages in a wrongful death action. They may only receive punitive damages through the decedent’s estate in a survival action.

In general, an award of punitive damages must be supported by an actual damages award. Funeral expenses are generally not recoverable in a wrongful death action because they involve obligations of the estate. As such, they may be recovered in the survival action.

All plaintiffs who are statutory beneficiaries under the Wrongful Death Act may recover damages for mental anguish and loss of companionship. It is advisable to instruct the jury that loss of society and mental anguish are two distinct elements of recovery.

One other element of damages which is recoverable is damages for loss of inheritance.

Our firm represents clients in Corpus Christi, Houston, Galveston, Brownsville, Laredo, Victoria and all of Texas. Contact the Law Office of Scott Nelson if you need assistance with a wrongful death claim.