Until 1846 the England’s common law, which has been substantially adopted by the United States, provided that no cause of action existed for wrongful death. Therefore, the Plaintiff’s cause of action terminated upon his/her death; thereby, making it advantageous for the defendant to actually cause the death of someone rather than simply causing a minor injury. It was said that it was cheaper to bury your mistakes in comparison to saving or preventing the death of someone.

In 1846 the English Parliament passed the Fatal Accidents Act which created a statutory cause of action for causing the death of an individual. Most American States have adopted some variance of the Fatal Accidents Act, which are now widely known as the Wrongful Death Statutes. Texas enacted its Wrongful Death Statute in 1860.

The Texas Wrongful Death Act can be found at Chapter 71 of the TEX. CIV. PRAC. & REM. CODE. The Act provides the exclusive remedy for wrongful death in Texas, compensating the decedent’s spouse, children, and parents for the losses they sustained as a result of the decedent’s injury and death. The cause of action may be brought by any of the preceding parties as well as by the administrator or executor. The damages that are recoverable are those damages incurred by the above listed surviving family members. Siblings as well as aunts and uncles have no statutory cause of action.

Damages that are recoverable in a wrongful death cause of action include 1. Pecuniary loss for the care, maintenance, support, services, advice, counsel, and reasonable contributions of a pecuniary value that the beneficiaries would have received from the decedent had the decedent lived; 2. Loss of companionship and society which includes damages for loss of consortium; 3. Mental Anguish; 4. Loss of Inheritance; 5. And, in some cases exemplary damages (punitive).

Another source for recovery in lawsuits involving the death of the plaintiff is the Survival Statute. Unlike the Wrongful Death Statute the Survival Statute allows the right to recover for personal injuries held by the victim at the time of his/her death. Generally the only cause of action which survives under the Survival Statute is one for personal injuries sustained by the deceased prior to his death.