law-wrongful-death-survival-action | premises liability | negligent activity | foreseeability |
premises liability suits in the Houston Courts of Appeals | derivative claims |
WRONGFUL DEATH AND SURVIVAL ACTIONS BY FAMILY MEMBER OF THE
DECEASED (derivative claims)
Appellants sued appellees for wrongful death and survival claims arising from the February 2, 2003 shooting
deaths of Ciaramitaro and Messimer at the shopping center. Under the Wrongful Death Act, a decedent's
beneficiaries may bring an action if the decedent would have been entitled to bring an action for the injury had
the decedent lived. Tex. Civ. Prac. & Rem. Code Ann. §§71.003(a), 71.004 (Vernon 2008). To advance a
wrongful death claim, a plaintiff must be a child, parent, or the spouse of the decedent. Id. § 71.004.
Wrongful death claimants sue to recover their own damages resulting from the decedent's death. See id. §
71.004; Goode v. Shoukfeh, 863 S.W.2d 547, 551 (Tex. App.- Amarillo 1993, no writ).
Mayer v. Willowbrook Plaza LP (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)(Boyce)
(premises liability, criminal conduct, wrongful death, survival action)
Section 71.021 provides for the survival of a cause of action by which a decedent may have sought recovery
for personal injuries, pain and suffering, and other damages suffered before death. Id. § 71.021 (Vernon
2008); Goode, 863 S.W.2d at 551. Survival claims are "wholly derivative" of a decedent's rights.
Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex. 1992). A survival action does not create a new cause
of action; it merely permits the decedent's cause of action to survive the decedent's death. Kramer v. Lewisville
Mem'l Hosp. 858 S.W.2d 397, 404 (Tex. 1993).
As part of their statutory wrongful death and survival claims, appellants must establish that a wrongful act
occurred. McCullough v. Godwin, 214 S.W.3d 793, 805 (Tex. App.-Tyler 2007, no pet.); see also Tex. Civ.
Prac. & Rem. Code Ann. §§ 71.002(b), 71.021. Appellants contend there are two wrongful acts at issue here:
(1) negligent activity, and (2) conduct giving rise to liability for premises defect.
SIBLINGS CANNOT BRING WRONGFUL DEATH ACTION BECAUSE STATUTE DOES NOT INCLUDE THEM
Godfrey v. BP Products North America (Tex.App.- Houston [14th Dist.] Aug. 25, 2009)
(refinery explosion, siblings cannot recover under wrongful death act, no recovery as bystanders either as they
did not witness the calamity, negligent infliction of emotional distress generally not actionable, IIED cause of
action)
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Frost and Guzman
14-08-00857-CV Leah Godfrey and Cheri Merritt v. BP Products North America
Appeal from 212th District Court of Galveston County
Trial Court Judge: Susan Elizabeth Criss
ARBITRABILITY OF WRONGFUL DEATH / SURVIVER CLAIMS
In re Jindal Saw Limited (Tex.App.- Houston [1st Dist.] May 22, 2008, pet granted)(Alcala)
(workplace safety, occupational injury, worker's comp, nonsignatories, arbitration, wrongful death, survival
action)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Alcala
Before Justices Taft, Keyes and Alcala
01-07-01068-CV In re Jindal Saw Limited, Jindal Enterprises LLC, and Saw Pipes USA
Appeal from Probate Court No 1 of Harris County
Trial Court Judge: Hon. Russell Austin
Attorneys: Levi G McCathern II, Jeffrey Christopher Wright
Attorney Kurt B. Arnold, Marvin B. Peterson, Micajah Daniel Boatright
See subsequent Tex. Sup. Ct. Decision: In Re Jindal Saw Limited, No. 08-0805 (Tex. Feb. 27, 2009)(per
curiam)(arbitration mandamus) (nonsignatories, wrongful death beneficiaries compelled to arbitrate, workplace
death)
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