If a loved one has been killed in a crash caused by another driver, that driver may face criminal charges – for example, if they were driving drunk. Whether they do face charges or not, you can typically hold them civilly liable for expenses and other losses suffered because of their negligence or actions.
You may have heard terms like “wrongful death lawsuit” and “survival claim” and wonder just how they differ and who can file these suits. Let’s take a brief look at how these two actions differ.
When can you file a wrongful death suit?
Under Texas law, to sue someone for wrongful death, they must be guilty of a “wrongful act, neglect, carelessness, unskillfulness, or default.” A wrongful death suit can be filed by close surviving family members – namely, the spouse, children and parents of the deceased.
The purpose is largely to recoup money for economic damages for things like hospital and ambulance bills and burial expenses. Plaintiffs can also seek damages for future economic losses – for example, if they relied on the deceased’s income.
Wrongful death claims can also seek non-economic (“pain and suffering”) damages. These include things like the mental anguish of losing a loved one and loss of companionship.
Plaintiffs may also be able to recover “exemplary” damages (often known as punitive damages). These may apply if the party who caused the death committed a “wilful act or omission or gross negligence.”
When can a survival action be filed?
Survival actions are brought by the deceased person’s estate. They’re largely intended to seek damages for the pain suffered by the victim after they were injured but before they died. For example, maybe a person survived a crash for days, weeks or longer – in serious pain and distress, unable to work and undergoing invasive medical procedures. The idea is that, as the law says, “A cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person….”
Because the claim is brought on behalf of the deceased, it’s technically brought by their estate (and specifically by the estate’s executor. Any settlement or award goes to the estate.
It’s a lot to think about at a very difficult time. Having experienced legal guidance can help.