Attorneys litigating survival or wrongful-death causes of action must have a clear understanding of the kinds of damages available to their clients.

At common law, a decedent’s cause of action died with him, and relatives and dependents had no cause of action for their own damages. As Prosser and Keeton on Torts (1984) characterizes the common-law state of affairs, “[F]rom the defendant’s point of view, it was cheaper to kill a person than to scratch him.”

The English Parliament passed the Fatal Accidents Act of 1846, otherwise known as “Lord Campbell’s Act,” to give families of deceased victims a remedy. Most American states, including Texas, modeled their own wrongful death statutes after Lord Campbell’s Act.

In Texas, two potential statutory causes of action now arise out of the wrongful death of a person: a survival cause of action and a wrongful-death cause of action.

Texas Civil Practice & Remedies Code §71.021 gives the heirs, legal representatives and estate of a decedent a survival cause of action “for personal injury to the health, reputation, or person of an injured person” after the death of the injured person.

Section 71.004 gives the surviving spouse, children and parents of a decedent a wrongful-death cause of action for their own damages.

Survival Actions

In a survival cause of action in Texas, the plaintiff may recover for the decedent’s pain and mental anguish, medical expenses and funeral expenses, and he or she also may recover exemplary damages. To recover damages for pain and mental anguish, a plaintiff in a survival cause of action must establish that the decedent suffered some conscious pain as a result of an injury.

A jury exercises great—but not unlimited—discretion in determining whether the decedent experienced pain and suffering before death. For example, in Carlisle v. Duncan (1970), the Fifth Court of Appeals in Dallas held that mere testimony of a “groan” coming from a car after a wreck was inadequate to support a finding of conscious pain and suffering.

On the other hand, Texas courts have found that jurors can infer pain and suffering in cases involving deaths by drowning or burning, and sometimes in other types of cases, as well.

For example, in Green v. Hale (1979), the Twelfth Court of Appeals in Tyler allowed the jury to infer that a child facing a truck backing up over him for a distance of 10 feet necessarily experienced conscious pain and suffering before his death.

In Luna v. Southern Transportation Co. (1987), the Texas Supreme Court upheld an award for conscious pain and suffering based on the testimony of a young boy’s father that his otherwise unresponsive child would open his eyes when the father would visit him in the hospital.

In Las Palmas Medical Center v. Rodriguez (2009), the Eighth Court of Appeals in El Paso found that testimony of “agonal breathing”—gasping breathing that often precedes death—coupled with a doctor’s testimony that the decedent’s breathing attempts confirmed consciousness, supported a finding of conscious pain and suffering.

Wrongful-Death Actions

In a wrongful-death cause of action in Texas, the surviving spouse, children and parents may recover their own damages, but not those damages suffered by the decedent. They may recover damages for pecuniary losses, mental anguish, loss of companionship and society, loss of inheritance and exemplary damages.

Pecuniary losses include damages for loss of advice and counsel, loss of services, expenses for psychological treatment and funeral expenses if the beneficiaries paid those expenses. Loss of advice and counsel includes the pecuniary value of professional recommendations and personal guidance that the decedent would have given the plaintiff if the decedent had lived. Mental anguish is defined as the emotional pain, torment and suffering that the plaintiff would, in reasonable probability, experience from the death of the family member. To recover loss of inheritance damages, the plaintiff must offer proof of the decedent’s probable lifetime income and expenditures, plus proof that the plaintiff probably would have been the beneficiary of the decedent’s estate.

In Moore v. Lillibo (1986),the Texas Supreme Court required jurors to consider the following before awarding damages for mental anguish and loss of companionship and society in wrongful death cases: 1. the relationship between the plaintiff and the decedent, 2. the living arrangements of the plaintiff and decedent, 3. any extended separations of the decedent from the plaintiff, 4. the harmony of their family relations, and 5. their common interests and activities.

The Texas Constitution limits the recovery of exemplary damages in wrongful-death cases to the decedent’s spouse and children, and it prohibits the decedent’s parents from recovering those damages.

Civil Practice & Remedies Code §71.005 allows the jury to hear evidence of “actual ceremonial remarriage” in a wrongful-death case. But it prohibits the defendant from “directly or indirectly mentioning or alluding to a common-law marriage, an extramarital relationship, or the marital prospects” of the surviving spouse.

Texas courts generally are protective of the surviving spouse. For example, in General Motors Corp. v. Saenz (1991), the Thirteenth Court of Appeals in Corpus Christi rejected the defendant’s argument that evidence of subsequent relationships was admissible for impeachment purposes. In Richardson v. Holmes (1975), the Ninth Court of Appeals in Beaumont rejected the argument that jurors should be allowed to hear evidence about the effectsof the surviving spouse’s remarriage, as opposed to evidence of the simple fact of the remarriage.

There are important differences in how the law treats damages in wrongful-death and survival cases. In a wrongful-death case, unlike in a survival case, §71.010 requires the jury, not the laws governing descent and distribution, to determine the division of damages among the plaintiffs. Section 71.011 provides that damages in a wrongful death suit, unlike survival damages, are not subject to the decedent’s debts.

If the decedent’s employer is a subscriber under the Workers’ Compensation Act, then Labor Code §408.001 allows a surviving spouse or heir to recover exemplary damages—but not actual damages from the employer if the employer’s gross negligence or intentional act caused the worker’s death. The courts are split on whether the cap on exemplary damages as a multiple of actual damages contained in Chapter 41 of the Civil Practice & Remedies Code nevertheless requires a finding of actual damages in such a case.

In Texas, the Survival Act and the Wrongful Death Act give decedents and their families legal remedies not available at common law. A decedent’s cause of action now survives the death of the decedent, and the decedent’s spouse, children, and parents now have claims for their own damages.