Two separate and distinct causes of action may arise when injuries from a wrongful act to omission result in death. One of them is an action for damages sustained by the decedent and his or her estate as a result of the injuries. This action survives to the heirs or legal representatives of the decedent’s estate pursuant to Section 71.021 of the Texas Civil Practice and Remedies Code. Although at common law a right of action in tort abated on the death of the person injured, the survival statute allows an action for personal injury to “survive” death of the injured person. The damages recoverable in a survival action are generally limited to those which the decedent could have recovered if he or she had lived, and funeral expenses.
A cause of action also exists in favor of the surviving spouse, children, and parents of the decedent under the Wrongful Death Act. The damages recoverable under a wrongful death action are those sustained by the beneficiaries by reason of the death, including both pecuniary (loss of income, etc.) and no pecuniary losses (pain and suffering and mental anguish etc.). Because a survival action is distinct from a wrongful death action, a judgment in a wrongful death action does not necessarily bar a subsequent survival action.
An action for wrongful death may be based on a wrongful act, negligence, carelessness, unskillfulness, or default if the individual injured would have been entitled to bring the action for the injury if he or she had lived. Recovery may be based on negligence, strict products liability, or an intentional tort. It has been suggested that the Wrongful Death Act does not authorize recovery for breach of an implied warranty on the theory of breach of contract if tortious liability cannot be established.