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Texas Wrongful Death and Survival Claims Explained

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There is often confusion about Texas wrongful death and survival claims, but Dallas serious personal injury attorney, Ben DuBose, explains, “When tragedy strikes and a person dies because of someone’s negligent conduct, Texas law provides for two general types of recovery in our civil court system: wrongful death and survival claims.”

Survival claims

Survival claims are those personal injury claims the deceased individual would have if they were living. The individual’s death does not extinguish these claims. Rather, they “survive” their death and belong to the estate of the decedent. Survival claims include claims for pain, suffering, mental anguish, lost wages, as well as medical expenses related to treatment of the injury that caused the death.

Wrongful death claims

In addition, claims can be brought by the family of the decedent for wrongful death. Wrongful death claims exist by statute in Texas and belong to the family members of the decedent for the loss of their spouse, parent, or child.

How wrongful death and survival claims work together

DuBose points out that “while wrongful death and survival claims are separate claims, they are brought in the same lawsuit.”

A surviving spouse, parent or child may bring the wrongful death action. However, if none of those individuals have brought the claim within three months of the death of their loved one, the executor of the estate may bring the claim.

Surviving siblings do not have standing to bring a wrongful death action in Texas. However, most states have a wrongful death statute and the classes of relatives with standing to bring a claim vary from state to state.

In some Texas wrongful death claims, exemplary damages are available. Exemplary damages are permitted if the jury finds a wrongful death is caused by a willful act or omission, or by gross negligence. The purpose of exemplary damages is not to compensate the family, but to punish a wrongdoer and to make an example that willful or grossly negligent behavior will not be tolerated.

The award of damages in a Texas wrongful death claim is typically made by a jury. The jury allocates the damage award among the surviving family members in proportion to the injury they suffered as a result of the untimely death.

The Texas wrongful death statute can be found here.

The American Flag and Flag Day

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The American Flag from 1777 until 1960

The American Flag, somewhat in the form we know today, was adopted on June 14, 1777, when the Second Continental Congress passed a Flag Resolution. It stated, “Resolved, That the flag of the thirteen United States be thirteen stripes, alternate red and white; that the union be thirteen stars, white in a blue field, representing a new constellation.” Though somewhat descriptive, there were 27 variations from the first Stars and Stripes until the current flag adopted on July 4, 1960 with the admission of Hawaii to the United States.

Design of the American Flag

There are a few stories that are legend in the design and making of the U.S. Flag.

Francis Hopkinson

A signer of the Declaration of Independence and a naval flag designer, Hopkinson designed the naval flag and also the U.S. flag in 1777 – however, the public preferred the naval design for the national flag. It wasn’t until 1780 that a bill was sent to Congress for payment for his design. He requested a “Quarter Cask of the Public Wine” as payment for design of the U.S. flag as well as for the Great Seal of the United States and other seals. However in his following bills, he only mentioned the design for the naval flag, not the U.S., in addition to the other seals. He received no payment because he was paid a salary as a member of Congress at the time they were created.

Betsy Ross

The legend of Betsy Ross sewing the first flag from a sketch given to her by George Washington has no proof. It was never mentioned until her grandson suggested the scenario almost a century after the first flag was created.

Rebecca Young

Another rumor came from the family of Rebecca Young. They claimed it was she who sewed the first flag. There was flag-making in the family as it was her daughter, Mary Pickersgill, who sewed the Star Spangled Banner Flag. The family believed she was inspired by a 15th century window in Selby Abbey showing stars and stripes in the Washington family coat of arms.

The progression of the American Flag design started with the Union Jack as both have the seven red and six white stripes.

In 1818, Congress passed an Act that specified a new star would be added to the flag as each new state was admitted.

Until the 48-star flag adopted in 1912, there were no standard arrangements for the stars, except in the U.S. Army and U.S. Navy. Stars were in circles, rectangles, star patterns, almost any shape.

The History of Flag Day

Through all this history, there had been no day set aside to focus on the U.S. Flag. Today, Flag Day is unknown to most U.S. citizens, but June 14th is the day set aside to honor our flag.

The commemoration of the Flag originated in Wisconsin in 1885 when a schoolteacher, BJ Cigrand, had his students celebrate the day as the anniversary of the official adoption of the U.S. Flag which occurred 108 years previously. The first years, the day was known as the ‘Flag Birthday’ but later known as ‘Flag Day.’ It was observed through special commemorations at schools, articles in magazines, newspapers, and even public speeches. There were assemblies with patriotic songs, the gifting of small flags for children, and the request that all citizens in Wisconsin display the flag on that day.

In 1894, the mayor of New York proclaimed all public buildings should fly the flag on June 14th. That same year 300,000 children gathered at parks in Chicago to celebrate the day.

The first national celebration was established on May 30th, 1916 when President Woodrow Wilson officially proclaimed June 14th as Flag Day. Though it was celebrated in many communities across the nation in the following years, it was on August 3rd, 1949, when President Truman signed the Congressional Act designating June 14th of each year as National Flag Day.

National Flag Day in 2018

Though the day shows up on most calendars and there are some who make it a practice to fly our flag at home and businesses, most people think little of the day and its history as they look forward to the Fourth of July. Today the flag is sometimes a controversial icon. Many have fought and died for this piece of cloth and the freedoms it represents, including the freedom to revere and respect it as well as the freedom to express differing opinions and even abuse it. Yet, the flag represents now – as well as in the past – a country founded on freedoms expressed in the First Amendment right to freedom of speech.

While there will be few, if any, events honoring our flag tomorrow, it provides the chance to reflect for a moment on this country and those who have defended the flag representing our rights.

Long may she wave.

Uber Self-Driving Car Kills Pedestrian

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The first case of a pedestrian killed by a self-driving car occurred in Tempe, Arizona. This technology is still in the experimental phase, however Uber self-driving cars are on the roads in Pittsburgh, San Francisco, and Toronto – as well as Tempe.

Are self-driving cars safer?

Increased safety was the initial premise for the existence of unmanned self-driving cars. One of the primary causes of automobile accidents is distracted driving. In a robotic car, that should not be a problem, but obviously there are issues to be addressed. Building systems to automatically react appropriately in unexpected situations is a difficult task.

What happened in Tempe?

In this case, the car did have a human in the car as a backup. It appears the car, a Volvo XC90, was going about 40 MPH on dry streets with clear weather at 10 p.m. on a Sunday. An investigation is ongoing since the safety driver did not appear impaired. The victim, a 49 year-old woman, was walking her bicycle in the street. Though this was the first accident involving a pedestrian, one of these autonomous vehicles collided with another car in March of 2017.

Safety measures in place

Because states are eager to encourage testing, there are few regulations in place – not only with Uber, but Waymo, Lyft and Cruise, owned by General Motors. Doug Ducey, governor of Arizona, said in 2017, “We needed our message to Uber, Lyft and other entrepreneurs in Silicon Valley to be that Arizona was open to new ideas.” Originally Arizona mandated a backup driver in the car, but recently that was changed to allow testing of unmanned self-driving cars. This leniency is to boost the economy by allowing a low regulatory environment.

California is on the cusp of allowing unmanned vehicles, but is still investigating the proposition. In its testing of manned self-driving cars, Waymo has produced statistics required by California. When a human has to take control, it’s called a disengagement. In just over a year, Waymo’s cars drove 350,000 miles with 63 disengagements. This averages approximately 5,600 miles between disengagement events, clearly demonstrating the need for more testing before widespread use of unmanned vehicles.

Michael Bennett, an associate research professor at Arizona State University, has been studying the reaction of the public to driverless cars and their artificial intelligence. His comment on the aftermath of the Tempe pedestrian incident reveal his conclusion, “We’ve imagined an event like this as a huge inflection point for the technology and the companies advocating for it. They’re going to have to do a lot to prove that the technology is safe.”

Who’s Fault is Injury from Self-Driving Car?

“Look for insurance companies to lobby for profound changes in state insurance requirements and state laws”, says Dallas lawyer, Ben DuBose. “However, in the Arizona Uber incident, there was a back-up driver in the car. So, there’s still a question of why the back-up driver didn’t disengage and potential liability for her. People will still need car auto insurance and will still have potential liability.”

At the same time, as we head into the self-driving car era, DuBose says to look for additional new legal theories to address the autonomous car features. Automobile manufacturers and software designers will face new product liability claims. As even Volvo Car Corp. Vice President, Anders Karrberg recently testified before Congress “[c]armakers should take liability for any system in the car. So we have declared that if there is a malfunction to the [autonomous driving] system when operating autonomously, we would take the product liability.”

Pedestrian Deaths Climb

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Stockholm, Sweden - June 23, 2015: Pedestrians cross Klarabergsgatan Street in Stockholm, Sweden. In the foreground a woman walks past while looking at her smartphone.

Pedestrian Deaths Climb

From 2010 to 2015, pedestrian deaths in the US grew by 25 percent. An estimate by the Governors Highway Safety Association (GHSA) predicted another 11 percent climb between 2015 and 2016. As a percent of total vehicle accident deaths, there was an increase from 11 percent in 2006 to 15 percent in 2015.

Possible causes of the increase

These numbers may have increased for a number of reasons, such as demographics, economics, weather, the total vehicle miles, and the time spent walking. Another likely factor is the widespread use of smart phones for both drivers and pedestrians.

Why walk?

According to the GHSA, there are five basic reasons.

• Health – The benefits of walking are well known: it’s available to almost everyone, it’s inexpensive, and it can reduce the risks from stroke, diabetes, heart disease, and obesity.
• Transportation – A 2009 found a significant percentage of trips are less than one or two miles long, making walking a viable alternative to driving. In 2015, the U.S. Census Bureau’s American Community Survey (ACS) reported over four million people walk to work each week.
• Economic – Walking is free, operating a car is approximately $8558 a year according to AAA.
• Environmental – While walking causes no negative impact on the environment, motor vehicles create a number of environmental issues.
• Transit – There are many people using public transportation, which requires walking to access the transit system.

Causes of most pedestrian fatalities

Time – As might be expected, night is the most likely time of day with 74 percent of the deaths.
Impairment – Alcohol involvement by either the driver or pedestrian is a factor in almost half the accidents. Increasingly, that includes texting.
Location type – Over 70 percent of fatalities were in non-intersection locations, such as mid-block or highways.
State – California, Texas, and Florida had the most pedestrian fatalities in the first six months of 2016, the most recent data. However, as deaths per 100,000 population, Delaware, Florida, and Arizona topped the list.

What can be done?

Some strategies include increasing the separation between pedestrians and motor vehicles, such as installing sidewalks, pedestrian overpasses and underpasses, new traffic signals. Making walkers more visible is another option with improved lighting and high-visibility crosswalks. A third option is to add deterrents, such as speed bumps, roundabouts, and bicycle lanes.

Possibly the most important step involves safety education of both pedestrians and drivers as well as enforcement of the law. This includes a focus on behavioral issues like distracted, impaired, or aggressive driving; use of seat belts; and teen/older driver issues. Specific programs involve:

• Targeted law enforcement efforts
• Public information campaigns
• Educational outreach in high-risk areas
• Data analysis
• Identifying high-risk zones
• Pedestrian safety assessments/road safety audits
• Adoption of Complete Streets policies, which direct transportation planners and engineers to routinely design and operate the entire right of way to enable safe access for all users, regardless of age, ability, or mode of transportation.
• Engineering measures, including some that target high-risk pedestrian crossing locations
• Strategic partnerships with universities and other organizations/agencies
• Inclusion of pedestrian safety action items in Strategic Highway Safety Plans (SHSPs)

Smart phones distract

As mentioned, there are many reasons for the increase in pedestrian deaths, but one comes to the forefront: increased use of mobile phones by both drivers and pedestrians. The Wireless Association reported multimedia messages increased by 45 percent from 2014 to 2015 and the volume of annual wireless data usage more than doubled. From 1.1 billion multimedia messages in 2005 to 218.5 billion in 2015, the growth of this deadly distraction is exponential.

An average texter looks away from the phone for 23 seconds, meaning the vehicle is traveling a significant distance with no operator. Since texters have a 23% higher chance of causing an accident, that impairment equals drinking four beers, which can result in weaving and the inability to stop on time.

Currently Texas is one of four states without a statewide texting ban. That will soon change as a no-texting bill passed the Texas House and Senate and now awaits the signature of the governor. Though states and enforcement agencies can plan and implement various safety strategies to slow this rising tide of pedestrian deaths, the bottom line is that every one of us – drivers or pedestrians – must pay attention to our surroundings and leave distractions for safe areas.
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Thanks to Pedestrian Traffic Fatalities by State – 2016 Preliminary Data Prepared for Governors Highway Safety Association by Richard Retting, Sam Schwartz Transportation Consultants for much of this information.

Guidelines Developing to Discourage Driver Distraction Using Mobile Device Apps

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In the past two years, fatalities linked to driver distraction while using smartphones have increased significantly. To limit this distraction, the National Highway Traffic Safety Administration (NHTSA) issued voluntary guidelines to app developers. These guidelines could have a driver mode, similar to airplane mode that would modify or block apps and features known to divert attention when driving.

Apple, Samsung, and other device manufacturers are called to develop technology that recognizes a car in motion and also perceives when the driver is using it while driving. Limiting functionality while simplifying interfaces would be a start to curtailing this dangerous, and widespread habit of drivers, young and old.

Anthony Foxx, secretary of the Transportation Department, said, “Your smartphone becomes so many different things that it’s not just a communication device. Distraction is still a problem. Too many people are dying and being injured on our roadways.”