Consult a Dallas Personal injury lawyer. This website information is not intended as legal advice. This website information should not be interpreted as forming an attorney-client relationship.
In Texas, there are two types of lawsuits that can be filed when tragedy falls on you or your loved ones. The most significant difference between the two lawsuits is that wrongful-death plaintiffs recover damages for their own injuries, while survival plaintiffs recover damages for the injuries suffered by the decedent.
To prove a survival action, the plaintiff must establish that the decedent, before she died, had a cause of action for an injury covered by the Survival Statute. See Tex. Civ. Prac. & Rem. Code § 71.021.
If the decedent died before bringing an action that survives, the survival plaintiff may bring the action as the legal representative of the decedent’s estate. If the decedent died after bringing an action that survives, the survival plaintiff may continue the action by filing a “suggestion of death” with the court, entering an appearance, and prosecuting the suit in her own name as the legal representative of the estate.
The estate as plaintiff does not benefit from a wrongful death suit. The proper plaintiff in a wrongful death suit is:
The proper plaintiff in a Texas Survival Statute Claim is:
Someone that can prove she is either the personal representative of the estate or an heir of the decedent.
The Actionable Wrongs:
Any wrongful act, neglect, carelessness, unskillfulness, or default causing death.
If you have lost a loved one due to negligence, we are here to help.
These claims can be complex, and you should consult a Dallas personal injury lawyer to understand your potential legal claim. The statute of limitations applies to a wrongful death and survival action.
The elements of negligence are the existence of a duty owed by one party to another, and a breach of that duty which causes both foreseeable, and compensable damage to a plaintiff. A Dallas personal injury lawyer must prove the case by presenting convincing evidence with respect to all these elements.
Whether an injury was foreseeable is the primary factor involved in finding out if a duty exists. In many cases, it’s the foremost and dominant consideration to make when you seek a claim for damages.
Breach of duty is often a fact question. What does that mean? It means the question depends on what the facts were at the time of the incident that caused the harm. For example, when a motorist runs a red light, they have breached the duty to follow the rules of the road. It’s foreseeable that an injury is likely with cars being so heavy and dangerous. Therefore, when the motorist hits someone, we feel ok with holding that person accountable.
A Dallas personal injury lawyer must balance the likelihood of injury, the seriousness of the injury that happens, and the interest that must be given-up to avoid the risk.
In our motorist example above, the likelihood of someone becoming seriously injured or killed is too high not to impose restrictions on other motorists. Therefore, the law imposes a duty on motorists to operate their vehicles in a reasonably prudent manner and follow the rules of the road.
In Texas, there are some special duties imposed on certain drivers: Common Carriers, like buses, are required to use the highest duty of care for the safety of their passengers. This can give clients context when deciding whether to hire The Abeita Law Firm.