When a worker is killed on the job, can his/her family sue those responsible?

Once the terrible news of a work related death sinks in, the victim’s family is left with questions about hazardous job conditions and other circumstances that could have caused their loved one’s death. One of their most important questions is whether the company(s) or person(s) responsible for the death of their loved one can be sued. The answer is yes. A member of the victim’s immediate family – a surviving spouse, child, and sometimes, a parent, has that right. But the suit must be filed by a personal representative of the victim’s estate, that is, an individual named in the victim’s will or appointed by a probate court. Wrongful death actions in Texas are covered by the Texas Wrongful Death Act located in the state’s Civil Practice and Remedies Code, article 71.002 (2007).

How strong are the family’s legal rights?

They can be substantial. The Constitution of the State of Texas provides that “every person, corporation, or company, that may commit a homicide, through willful act, or omission, or gross neglect, shall be responsible”…”to the surviving husband, widow, and heirs of the victim, or such of them as those may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide.”

How does workman’s compensation law apply in wrongful death cases?

If the employer carries workman’s compensation insurance, then the damages that can be paid to survivors are limited to the amount in that policy. These damages are called “compensatory damages,” because they make up for loss of support, loss of services, medical and funeral expenses, lost prospect of inheritance, and loss of future earnings/business/employment opportunities. Interest on these damages begins on the date of the victim’s death.

Are survivors always limited to compensatory damages in these cases?

There are exceptions to the limits imposed by the workman’s compensation law. A good personal injury attorney is the best source of information about this crucial aspect of financial awards to survivors. In some cases, punitive damages may also be available. This money is awarded to the victim’s survivor(s) to punish the wrongdoer(s) or stop similar conduct by other potential wrongdoers. Most states do not allow for the recovery of punitive damages in a wrongful death action. Some states, however, do permit these awards. Texas is one of those states. Punitive damages are known as “exemplary” damages in Texas and can be awarded under the state’s Civil Practice and Remedies Code, Article 41.001. In those states that do not explicitly allow or disallow punitive damages in a wrongful death law suit, the court may permit such damages.

What is 'gross negligence?' Why is it important in a wrongful death lawsuit?

To win a wrongful death lawsuit, a personal injury attorney must show that more than simple negligence was involved in causing the death. The attorney representing the victim’s family must show that the employer and/or his employee(s) were grossly negligent in these ways:
•    The act must be viewed objectively from the standpoint of the defendant(s). The act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others. “Extreme risk” is not the remote possibility of injury or high probability of minor harm, but rather the likelihood of serious injury to the plaintiff.
•    The defendant(s) must have actual, subjective awareness of the risk involved but proceed anyway in conscious indifference to the rights, safety, or welfare of others. “Actual awareness” means that the defendant(s) knew about the peril, but his, her or its acts or omissions, demonstrated that he, she or it did not care.

What part does malice play in a wrongful death lawsuit?

In 1995, the Texas Legislature substituted “malice” for “gross negligence” as a prerequisite for punitive damages in on-the-job wrongful death actions. While the Texas Supreme Court has held that the legislative definition of malice and the judicial definition of gross negligence are identical, the malice definition in the Texas Civil Practice and Remedies Code applies.

Can a corporation be forced to pay punitive damages?

Yes, in Texas it can be ordered to pay punitive damages; but only if the corporation itself commits the act(s) of gross negligence that caused the work related death. (That means there is a difference between the acts of a corporation and the acts of its agents or employees.) But a corporation can be held liable if it authorizes or ratifies an employee’s gross negligence or if it is grossly negligent in hiring an unfit employee. The corporation is also liable if it commits acts of gross negligence through the actions or inactions of one or several “vice principals,” including:

•    The board of directors and executive officers (the CEO, executive director, etc)
•    Those with the authority to hire, supervise, and fire employees.
•    Those with duties that can’t be delegated.
•    Those who manage the corporation or a department or a division of the business.

How do federal and state safety laws apply in a wrongful death case?

The Texas Occupational Safety Act and the United States Occupational Safety and Health Act are laws meant to prevent work-related deaths and workplace injuries. However, OSHA allows states to use their own standards and enforcement, instead of the federal standards, as long as the state’s standards and enforcement have been approved by the U.S. Secretary of Labor. In assessing a potential lawsuit, a personal injury attorney must examine both state and federal occupational safety standards to determine which law applies.

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