In Texas, the surviving spouse, children, or parents of a deceased person can file a wrongful death lawsuit against a person or entity whose wrongful act or negligence caused the death. One of them can file the claim as an individual, or they can file together as a group. If none of them files the claim within three months of the death, a representative or executor of the deceased’s estate can file the claim unless the family member asks that it not be filed. Texas doesn’t permit surviving siblings to file a wrongful death lawsuit for a sibling’s loss. Unlike criminal charges brought in connection with the same death, liability in a wrongful death suit is expressed solely in monetary damages.
The family members or estate can recover damages, including lost earning capacity, lost inheritance, lost love and companionship, lost earning capacity, lost services and counsel that would have been given by the deceased person, mental anguish, and pain and suffering. Punitive or exemplary damages may also be recovered in order to punish a wrongdoer. The damages will be divided among the surviving family members in proportion to their degree of injury as a result of the death. For example, a surviving spouse who was close to the decedent would likely be entitled to a greater share than a child who was estranged from the decedent for years before the death.
In a recent Texas appellate case, Badall v. Durgapersad, a man shot his victim in a tire shop he owned. The victim died in the hospital the next day, and the man was charged with murder and convicted. He appealed, but the appellate court affirmed his conviction. The victim’s family sued the man for wrongful death, claiming various damages including medical bills, funeral expenses, lost earning capacity, pain and suffering, mental anguish, loss of consortium, lost earning capacity, punitive damages, and lost inheritance and interest. They moved for summary judgment.
The defendant argued that this was improper because he had shot the man in self-defense. The motion for summary judgment was granted, and over $1 million was awarded as damages. An appellate court reversed and sent the case back for a new trial. The plaintiffs failed to appear for the new trial, and so the trial court dismissed the case, but the plaintiffs claimed that they hadn’t appeared due to miscommunication, and the case was reinstated.
At the trial, the decedent’s wife testified the defendant shot and killed her husband. She also testified about the effect of the death on herself and her kids. She had suffered a heart attack and had to take medication for stress. She testified she missed her husband and had to learn to run the tire shop because her husband had done everything. Her son had died of a heart attack at age 33 on the first day of the murder trial, and he had two kids. The decedent had paid his daughter’s way through dental school and had counseled her, but he never got to see her graduate or meet his grandchildren. Similarly, a middle child couldn’t be part of the funeral because she had a baby the day after her father’s death.
None of the daughters testified, and the mother testified this was because they didn’t want to relive what had happened to their father. The jury found that Badall had assaulted the victim, and his failure to use ordinary care had proximately caused the death. The jury awarded the estate as well as the wife and her kids damages in a total sum of $753,885.50. The defendant appealed, arguing that the evidence was insufficient to support the finding that he was 100% responsible for the death and the damages award.
The appellate court explained that the evidence was legally sufficient to support the finding the defendant was 100% responsible, notwithstanding the defendant’s claims of self-defense. The defendant had argued that the sole testimony related to the damages was the wife’s testimony and that the daughters hadn’t testified. The court affirmed the award, explaining the wife’s testimony was legally sufficient and documentary evidence is not always required with regard to wrongful death damages.
If a loved one dies due to another person’s wrongful conduct, it’s important to retain attorneys with experience in these challenging cases. The experienced San Antonio wrongful death attorneys at Carabin & Shaw may be able to help. Call our office for more information at 1-800-862-1260.