Around 6:35 Monday morning, five people were killed in a horrific accident when an SUV and a tractor-trailer became entangled on an overpass at the intersection of I-20 and I-35E in south Dallas. The fiery accident tied up traffic in the area for hours, but more importantly cost the lives of two children, a pregnant woman, her unborn child and another adult. The investigation is still ongoing, so it is far too early to assign blame for the accident. Even if it was entirely clear how the accident happened, casting blame isn't the purpose of this blog.
No, what I intend to discuss today is how this accident very likely reveals something about Texas wrongful death law that most people will probably find to be quite shocking:
If you kill enough members of a family, there isn't anyone left to sue you.
Before we get too far into this discussion, I probably need to lay down a few disclaimers and some general assumptions necessary to frame the topic. As I mentioned earlier, we don't know who is at fault. I heard on KRLD news radio a couple of days ago that the authorities told reporters that the truck driver may have struck the SUV because it was stalled on the overpass. I've also heard that the authorities told the media that witnesses described seeing the trucker swerve, and that he may have fallen asleep at the wheel. As you can see, those theories couldn't be more dissimilar, and all the he-said, she-said is far from conclusive, so I'm going to say that it's too soon to tell.
But let's imagine, for argument's sake, that this accident is the fault of the truck driver, which would naturally mean that this is a wrongful death scenario. As such, under Texas law, certain family members would be able to file suit to hold the trucking company accountable. Also, let's assume that the victims of this accident were a husband and wife and their three biological children (including the unborn child).
The Question: How Many Wrongful Death Cases Would There Be?
Five people were killed, so surely there would be five claims of wrongful death, right? Unfortunately, no. Assuming that the three (including the unborn child) children who were killed in the accident were the children of the driver and passenger, then the only people who have standing to bring a wrongful death claim against the trucker for killing these children would be the parents themselves. And with the parents presumably lost to the accident as well, combined with the fact that the right to sue for wrongful death does not get passed to the next of kin, there is simply no one left who has standing to bring a wrongful death claim on behalf of the children killed in this accident. Now, if one of the children was, say, a stepchild to one of the adults, meaning that one of the child's parents are still living, then that parent would be able to bring a claim. But I think it's far more reasonable to assume that this was a conventional family and that the parents of the children died in the accident.
The answer is most likely two. The two adults killed in the vehicle will likely have parents who are still living, making them the only ones with standing to pursue a case. Under Texas law, the woman's parents could sue for her wrongful death, and the man's parents could sue for his wrongful death.
You may be thinking, "Oh, thank goodness. I was worried that the trucker would escape all accountability." But, I should add that the only thing that decides the value of a wrongful death claim (and, yes, I'm fully aware of how crass that sounds, but the cold hard reality is that we punish people for wrongful conduct by taking their money and giving to the victims or the victims' family) are the minds of jurors. There is no such thing as the inherent value of a wrongful death case. Instead, juries evaluate the suffering that the surviving family members have endured because of the defendant's wrongful conduct, and they make the defendant pay that amount to the claimants as recompense.
The problem is that Texas juries typically don't apply a lot of value to the wrongful death claims of upper-age people who lose their adult child in an accident. An example will help. If I were killed in an 18-wheeler accident, my family would have a strong case. I'm a young guy with a wife and a daughter, and I work incredibly hard to earn a good living. Plus, my wife and I foster needy children, work for several charitable causes, and take an active role in serving our community. Most juries would make the person who killed me pay my wife and daughter a fortune. It would be a bad day to be that trucking company.
But, on the other hand, I'd leave behind my mother as well, and she'd also have a claim under Texas law. Even though a jury may award her a substantial amount of money, it would absolutely pale in comparison to what they'd make the bad guy pay my wife and daughter. Or imagine that, God forbid, my wife and daughter proceeded me in death and then I was killed by a truck driver. The only one left to file suit would be my mother, and, as we discussed, her case would be substantially less significant in value. Or, another way to look at it, is that the trucking company would get off easy if my wife and daughter couldn't pursue their claims.
Where this takes us in the end is to a rather uncomfortable place in the law. A company (or individual's) liability for wrongful death is actually reduced as long as they kill enough of the claimants. If, hypothetically, the whole family, grandparents included, were in the car when this wreck happened, then there would literally be no one would could hold the trucker accountable for the deaths of the mother, father, and three children. I know that probably sounds unbelievable, but believe it; it's true.
And this is more common than you'd think. About a year and a half ago, our firm was hired by a man and woman in their 70s who lost several loved ones in a fiery accident in far North Texas. In that wreck, the mother, father, and three adolescent kids were killed when their Suburban was rear-ended by a drunk person who was driving a Hummer H2 about 40 mph over the speed limit. The impact was so severe that the Suburban exploded on impact, killing everyone inside. The folks who hired us were the parents of the husband/driver in the Suburban. The wife's parents were already deceased. So, in that case, the grandparents could not seek justice for their daughter-in-law or any of their three grandchildren. We made sure to get them the maximum allowed compensation under the circumstances, but it still stung greatly that the rest of the family who perished were simply forgotten by the law.
There Have Been Similar Shortcomings in Texas Law in the Past
This isn't the first time that Texas law allowed for such an undesirable outcome. If you go back a few decades, you'll find that there was a time when Texas had no "survival claim." A survival claim is one where you are injured and therefore have the right to sue for your injuries, then you die, yet your loved ones can assume your right to sue for YOUR pain and suffering. This can apply to situations where you were injured and then later die of something unrelated, or it can apply to situations where you are injured to death.
For example, our firm's Dallas 18-wheeler accident attorneys represented a woman who was injured pretty badly by a drunk driver. She hired us to pursue the case, and then, for reasons completely unrelated to the accident, she died unexpectedly. Well, her case didn't evaporate into thin air. Instead, it was inherited by her next of kin as an asset of her estate. Prior to the passage of the Texas Survival Statute, that would not have been the case; she simply would have died and then her case would die with her.
The problem with the way the law used to work when we had no survival cause of action is that someone could injure you in an accident, realize that your injury claim was going to cost them a fortune, and then they'd make the conscious decision to kill you, knowing that your injury claim would go away and it would save them money. Cynical law professors would tell their students, "If you hit someone, you'd better kill them. It's cheaper that way." Sure, killing the victim would create a wrongful death claim, but juries typically award vastly greater compensation to the injured person themselves than they award to the victim's family for a wrongful death.
There were even rumors circulating back in the days before Texas had a survival cause of action that automakers and airlines would design their seats in such a way that they'd kill you in an accident rather than let you be injured, knowing it would save them untold millions by avoiding injury lawsuits. I don't know about all that, but what I do know is that the lack of a survival claim was bad news for all the reasons previously mentioned. Texas needed some way for injury cases to continue to exist after the injured person shed their mortal coil.
When Texas law makers created the survival cause of action, they were in essence saying, "We don't want people to injure someone and then get a free pass should the victim die. So, this law allows the victim's relatives to inherit their injury claim." But wrongful death cases do not work this way. If my father is killed in an accident, I, as his son, have standing under Texas law to file a wrongful death claim. But, if I were to die before the case is concluded, the right to sue my father's killer dies with me. If I'm the only relative who could sue on his behalf, then whoever killed him gets a free pass.
How It Should Work
Just as creating the survival cause of action was a fix for a shortcoming in the law, it seems that Texas wrongful death law could use a fix for cases just like these. The origin of wrongful death claims goes back to Germanic blood feuds among the tribes who migrated to England. Someone would be killed in a fight or through carelessness, and money was exchanged to end these feuds, because the alternative was to wipe entire families as retribution. Those, by our standards, barbaric German tribes had a tiny issue with whole families being wiped out and came up with a system that we, in modified form, use today wherein we hold people financially accountable rather than seeking an-eye-for-an-eye style revenge. The shocking part is that the way Texas works, in some instances it is better, financially speaking, to wipe out entire families. Grotesque.
I would propose a change to Texas law to remedy this. Certainly, we don't want wrongful death cases being inherited by someone's next door neighbor, old college roommate, or distant cousin, so there has to be some limit on who has the right to bring suit. But, I'm of the opinion that in accidents where entire families are killed, family members (such as grandparents) who already have the right to sue for wrongful death for the loss of some of the victims, should, under those rare circumstances, inherit the right to sue on behalf of the other family members who were killed. Perhaps the law could say, "In the event that a statutory wrongful death beneficiary, who would normally have standing to sue for the loss of a person killed by way of negligence, should be themselves killed by the same act of negligence, their right to sue for wrongful death shall extend to those who have the right to sue for the loss of said statutory beneficiary."
Now, critical readers of this blog will no doubt mention that even if the grim scenario I outlined were true, distant relatives who may become appointed as personal representatives of the estates of the various members of this family may very well be able to bring survival claims on behalf of all the persons lost in this accident, even if they can't bring wrongful death claims on their behalf. The problem with that theory is that a survival claim only exists if there was conscious pain and suffering experienced by the victims prior to their deaths. It's my understanding that the vehicles in this case literally burst into flames, which means that, hopefully, the victims of this accident departed this without ever even knowing that an accident had happened, making all that I laid out above entirely accurate.
A side note, one of the early reports indicates that the gas tank on the 18-wheeler may have been ruptured and caught fire during the accident. I covered this in another article that you may wish to read.
For what it's worth, I truly hope to God that I am wrong and that the people in this accident were not a "conventional" family, so that if the truck driver did indeed cause the wreck, there will be plenty of step parents and other heirs to hold the responsible party amply accountable.