Civil Liability When a Person Dies

Some of the biggest suits you read about in the newspaper are "wrongful death" suits. Everyone knows what death is, of course, and we all have an idea what "wrongful" means, even though it is another one of those words lawyers use and absolutely nobody else does. A "wrongful death" suit is purely a creation of statute, unlike most other types of suits, which are "common law" causes of action that have been around for centuries.

It used to be the law that if a person died, his survivors had no cause of action for their loss as a result of his death - regardless of whether he was killed because of the negligence of others, or even intentionally. If the person who caused the death committed a crime in causing the death (murder, manslaughter or criminal homicide) he might be thrown in jail, but the family of the deceased would not have a civil claim for money damages.

Texas, and every other state, recognized that this was not fair, and that if a person was killed through the fault of another, his family had sustained damage for which the responsible person should be held accountable. Our Wrongful Death Act was the result. Only spouses, children and parents may bring such a cause of action under the statute: brothers, sisters, aunts, grandparents and other family members cannot sue for their damages.

In my practice, I often have to tell people - like an aunt or grandmother who raised a child and is as close to the child as any mother - that they simply cannot sue for their loss because the Wrongful Death Act says they cannot.

Another wrinkle that comes in because a wrongful death suit is based on a statute has to do with conflicts between that statute and other statutes. Under the law, "what the Legislature giveth the Legislature can taketh away", and quite often this can have harsh results. One example I have seen in my practice is that many people - and unfortunately many lawyers - have been unpleasantly surprised to find that their time to sue has run out months or even years before they thought it had because the statute of limitations in the medical malpractice statute overrides the limitations rules under the Wrongful Death Act.

Texas has one other statute, called the "Survival Statute" which allows the estate of a dead person to sue for damages that he could have sued for if he were still alive: the cause of action is said to have "survived" the death of the person who had it, which is why the statute that allows this is called a "survival statute".

If this law didn't exist, then the death of a person would immediately extinguish any claim the deceased person might have had - whether for injuries which caused the death, or for totally unrelated claims like breach of contract. Such a "survival" suit is brought on behalf of the estate of the deceased person, and any recovery in the suit is paid to the heirs of the estate under Texas probate law.

So it is entirely possible for a dead person (or rather his estate) to sue. And if a person is killed by the acts of another person, the dead man's family can sue as well.

John Polewski is a board certified attorney with offices in DeSoto.