Wrongful Death Lawyer
Like all of the other states, Texas has its own wrongful death statute. It provides that an individual or entity “is liable for damages arising from an injury that causes an individual’s death if the injury was caused by the person’s or his agent’s or servant’s wrongful act, neglect, carelessness, unskillfulness or default.”
HIRING THE RIGHT WRONGFUL DEATH LAWYER
THE ELEMENTS OF A WRONGFUL DEATH CASE
Nearly all wrongful death cases are based on allegations of negligence. Five elements must be proved in order to prevail. Those are that:
- The defendant owed the plaintiff a duty of care
- There was a breach of that duty
- The breach of duty cased the accident
- The injuries suffered in the accident caused the decedent’s death
- Legally recognized damages were suffered by the family or the decedent’s estate
A wrongful death lawyer must carefully prepare his or her cases. If the lawyer fails to prove any one of these elements, the case fails in its entirety.
THE BURDEN OF PROOF
Although a wrongful death case can arise from an intentional act like a murder, nearly all of such cases are the result of accidents. Should a person be prosecuted for murder, the state must find him or her guilty beyond a reasonable doubt. That’s the burden of proof in a criminal case. Civil courts have a lower burden of proof. They need only prove their case by a preponderance of the evidence. That means that their version of events is more likely true than not true.
CRIMINAL VS. CIVIL COURTS
Criminal courts aren’t allowed to award damages. That’s the job of the civil courts. Since the two types of have different burdens of proof, the law allows them to be heard at the same time in different courtrooms. In fact, due to the two burdens of proof, a person might be found not guilty in a criminal case and guilty in a civil accident case. Here are four types of wrongful death cases that are commonly filed:
Motor Vehicle Crashes
As per the National Highway Transportation Safety Administration, 34,571 people died in motor vehicle accidents in 2016. More than 71 percent of those fatalities involved drunk driving, speeding, failure to use a seat belt and distracted driving.
Crashes Involving Pedestrians
According to the Governors Highway Safety Association estimates, 5,997 pedestrians died in accidents involving motor vehicles in 2016. That was the highest number of deaths of pedestrians in 20 years. It was also an 11 percent increase from 2015.
The American Medical Association lists medical malpractice as the third leading cause of death behind heart disease and cancer. These cases often involve misdiagnosis, surgical errors, mistakes involving pregnancy and birth and errors in connection with prescribing and administering medications.
Fatalities in the Workplace
The fiscal year for the Occupational Safety and Health Administration runs from October 1 to September 30. During its 2015 to 2016 fiscal year, OSHA recorded 4,379 workplace fatalities. The general rule is that workers’ compensation benefits are the sole and exclusive remedy for the family of a worker who was killed on the job. There are few exceptions to this rule, but sometimes those exceptions allow for the filing of a wrongful death lawsuit.
Wrongful deaths can occur in other ways too. For example, they might involve premises liability, airplane, train, bus or boat accidents
WHO CAN FILE A WRONGFUL DEATH CASE?
Outside of the decedent’s family, the ripple effect of his or her death can be broad. Not everybody can file a wrongful death lawsuit though. Controlling Texas law only allows three types of people to file a wrongful death lawsuit. Those are the spouse, children and parents of the decedent. These people are known as statutory beneficiaries, and unless the Texas legislature amends the statute sometime in the future, only those people will be able to file a wrongful death action.
TYPES OF COMPENSATION
When a spouse, parent or child suffers fatal injuries as a result of the negligence of somebody else, their statutory beneficiaries have the right to seek damages in the courts. Damages that are typically allowed to be claimed and awarded consist of:
- The loss of the care, support, services and contributions of monetary value that the decedent would have contributed to the claimant
- The loss of companionship and society that would have come from the decedent
- Past, present and future mental anguish endured by the claimant
- Loss of the present value of the assets that would have been added to the decedent’s estate that would have enhanced its value had the decedent lived
When a wrongful death case is filed, it’s not unusual for a wrongful death lawyer to bring a survival action with it. If the victim survived his or her accident only for a few brief moments or even for a few months, his or her estate can bring that survival action. The fact that the decedent died doesn’t terminate his or her right to be compensated for survival action damages. That right survives the decedent’s death. Survival actions in Texas are also controlled by statute.
Damages in Survival Actions
These damages are similar to those that the decedent would have received had he or she not died from the crash. Those may include medical bills, lost earnings, pain and suffering and any damage to personal property. Funeral and medical bill compensation is to be paid in accordance with whether a statutory beneficiary or the decedent’s estate paid them.
HOW LONG DO I HAVE FILE A WRONGFUL DEATH LAWSUIT?
Texas has set a specific period of time that a wrongful death lawsuit must be filed in. The general rule is that it’s required to be filed within two years of the date of the accident. Failure to file the lawsuit within the two year limitations period is likely to result in permanent dismissal of the lawsuit. Survival actions have the same two year limitations period. There are very few exceptions to the limitations rule.
WE HAVE THE EXPERIENCE YOU NEED
No sum of money is going to bring your family member back. After a sudden and unexpected death, families are often left financially and emotionally devastated. Many people also want to learn exactly what happened, and they want to try to prevent similar accidents from happening in the future. Mike Allbee is an established, highly experienced and respected personal injury and wrongful death lawyer at the Allbee Law Firm. The firm maintains offices in Arlington, Fort Worth and Dallas. Along with numerous other prestigious professional awards, the Allbee Law Firm has been recognized as a Top 10 Personal Injury Law Firm in Texas by the American Institute of Personal Injury Lawyers.
Insurance companies know that wrongful death cases involve high states litigation. Evidence can get altered or destroyed, and witnesses can disappear. You may never learn the whole truth about your family member’s wrongful death if you wait too long. Contact wrongful death lawyer “Big Mike” Allbee by email, or you can phone him at 817-244-6453 to arrange for a free consultation and case evaluation. You’ll be treated with compassion and dignity by everybody at the Allbee Law Firm.