Wrongful Death Claims in Employment - Texas

Wrongful death claims in employment - texas

Wrongful Death claims in Texas in employment differ from other states in two specific ways.

In Texas even if your employer may not carry workers compensation.  Most states do not allow an employer not to have workers’ compensation, but in Texas many of the largest employers do not carry workers’ compensation.  This means that if your Texas employer has no Texas Workers’ Compensation Coverage of their own Occupation Injury Plan, the employer can still be sued if they are negligent in causing the injury or death.  If they have Texas Workers’ Compensation they are protected from a lawsuit even if they are negligent, except as noted below.

If an employee is killed by the gross negligence of their employer then their spouse and children can sue and collect punitive damages.  This is because the Texas Constitution specifically allows such lawsuits.  In this regard The Workers’ Compensation Act States:

Sec. 408.001.EXCLUSIVE REMEDY; EXEMPLARY DAMAGES.

(a) Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.

(b)This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer’s gross negligence.

(c)In this section, “gross negligence” has the meaning assigned by Section 41.001, Civil Practice and Remedies Code.

Gross negligence is more than just negligence.  To win this type of lawsuit your lawyer must prove by “clear and convincing evidence” that:

(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, consider the probability and magnitude of the potential harm to others; and

(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

It should always be remembered that, even if a loved one is killed or injured, they still have a claim against any third-parties who were not their employer and were negligent in causing their injury.

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