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WRONGFUL DEATH
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.
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