When a worker is killed on the job, they are not the only victim. The family members they leave behind suffer immense emotional distress, financial losses, and are often driven by a feeling that something must be done to keep this from happening to some other family.
This guide is written to aid such victims by empowering them to understand:
- Their rights and remedies under Texas work injury law.
- How Texas work injury law functions.
What do we mean by rights and remedies? The concept is best illustrated with examples:
- Everyone knows that when the government forbids you to share your opinion, that act violates your 1st Amendment rights. You have the right to file a lawsuit, and the remedy you seek is to get an order from a judge instructing the government to stop the infringing conduct.
- Similarly, everyone understands that when you're rear-ended in a car wreck, you have the right to sue the other driver, and the remedy you seek is compensation for your injuries.
But since Texas work accident law is so complex and counterintuitive, few people can accurately tell you what your rights and remedies are. But in this guide, we're going to solve that problem. We'll start with the basics, explaining what your rights and remedies are, then we'll go into great detail, explaining why and how those rights and remedies exist.
Chapter 1 : What Are Your Rights and Remedies?
The shocking reality is that not all families who lose a loved one in a work accident have the same rights and remedies. The rights and remedies you may have depend on:
- Whether the employer participates in the workers' compensation program.
- The specifics of the relationship between the victim and the wrong-doer.
What this means in plain English is that there is not one law called "fatal work accident law" from which all victims will be granted the same rights and remedies.
Instead, there are different bodies of law, all enacted at different times, that work in combination. From this mishmash of laws comes four different fatal work accident scenarios that are possible under Texas law. That is to say, all fatal work accidents will fall legally into one of these categories. So, we describe the categories below and list the rights and remedies available to you depending on which scenario your loved one's accident falls under:
| Scenario | Right | Remedy |
|---|---|---|
| 1. Your loved one's employer DOES participate in the Texas Workers' Compensation program. | a) You have the right to receive Workers' Compensation Death Benefits. b) You have the right to sue the employer, if the employer caused the fatality through gross negligence. | a) Workers' comp death benefits are 75% of the worker's wages paid in weekly checks, reimbursement for funeral expenses, and payment of medical bills related to end-of-life care. b) In a lawsuit for gross negligence, you are suing for punitive damages (i.e., money paid to victims to punish the employer) |
| 2. Your loved one's employer DOES NOT participate in the Texas Workers' Compensation program. | You have the right to file a conventional wrongful death claim against the employer, provided that some slight act of employer negligence caused your loved one's death. | With such a conventional wrongful death claim, you sue for compensatory damages (i.e., compensation for a wide variety of losses, including emotional distress, loss of consortium, lost wages, etc.). |
| 3. Your loved one was a CONTRACTOR, rather than a traditional employee. | You have the right to file a conventional wrongful death claim against the employer, provided that your loved one was harmed by the employer's negligence. This right is subject to more limitations than if your loved one was a traditional employee, because employers do not have the same responsibilities to protect contractors that they do to protect employees. | With such a conventional wrongful death claim, you sue for compensatory damages (i.e., compensation for a wide variety of losses, including emotional distress, loss of consortium, lost wages, etc.). |
| 4. Your loved one's death was caused on the job, but by a THIRD PARTY (someone who doesn't work for the same company). | You have the right to file a conventional wrongful death claim against the third party on the basis that their negligence caused your loved one's accident. | With such a conventional wrongful death claim, you sue for compensatory damages (i.e., compensation for a wide variety of losses, including emotional distress, loss of consortium, lost wages, etc.). |
As you can see, factors such as whether or not the employer opts into the workers' compensation program or is a non-subscriber, and the nature of the relationship between the wrong-doer and the deceased worker, can result in amazingly different outcomes. That is to say, the rights and remedies that are available to surviving family members can vary significantly based on those factors.
Here are some examples:
Example #1 — The Employer Participates in the Workers' Compensation Program
Steve works in a factory. His employer participates in the Texas workers' compensation program. A coworker runs over Steve with a forklift, causing his death. Steve's wife will be eligible to receive 75% of his wages, reimbursement for funeral expenses, and to have any medical expenses that resulted from the incident covered as well. The employer's workers' compensation insurance carrier will pay for all of that.
But can Steve's wife and kids file a wrongful death lawsuit against the company for the coworker's negligence? Probably not. This is because one cannot sue an employer for ordinary acts of negligence when the employer opts into the workers' compensation program.
The only scenario where Steve's wife would be able to sue the employer (who opted into workers' comp.), is if the employer was grossly negligent. So, for instance, if the CEO of the company was on cocaine and ran Steve over with a forklift, then Steve's family would be able to sue the company for gross negligence. Another way to think of this rule is that, when a company participates in the workers' compensation program, they can only be sued if their conduct was extreme and a worker is killed. They're un-suable if the worker died of an ordinary accident.
Example #2 — The Employer Is a Non-Subscriber to Workers' Compensation
Karen goes to work for a construction company that does not participate in the workers' compensation program. They are what we call a non-subscriber. The construction company fails to properly train her on how to safely operate a bulldozer. As Karen is operating the bulldozer, it flips over, and she is crushed by the bulldozer and dies. Under those circumstances, Karen's employer's negligence is slight. No extreme conduct by her employer led to her death. Rather, she was killed by the company's bad policies and their inability to train her.
Even though the negligence of the employer is not profound, here, Karen's family would still have the right to file a normal wrongful death lawsuit against the employer, and they're probably going to win.
But why? How come Karen's family can win when the employer committed a minor sin yet the family from the last example can't sue, even though their loved one was run down by a co-worker who wasn't paying attention? Well, when an employer opts into the workers' compensation program you can only sue when their negligence is extreme, and when the employer is a non-subscriber, you can sue even when their negligence is slight.
Example #3 — The Deceased Worker Is a Contractor
Bob is a cabinet installer. He is hired by a hotel to install cabinets in all of the rooms. Bob falls off his ladder and dies. Here, Bob's family would have a very difficult time holding the "employer,"—the hotel who hired him—liable for his death.
Why? Since he's a contractor, the hotel doesn't have an obligation to provide him with a safety harness, like they would if he were an employee. The way they see it, Bob is, for all practical purposes, his own company, and so they hired Bob, assuming that he's responsible for his own safety. In this instance, the hotel or construction company would not technically be his employer, and the family would have a difficult time bringing a claim against them.
Note: some exceptions apply, which you can read about below.
Example #4 — A Third Party Killed the Deceased Worker
Jill is a pizza delivery driver for Dominos Pizza. While out making a delivery, she's struck and killed by a drunk driver. Under those circumstances, the drunk driver is a third party, meaning they are not a part of the employer-employee relationship, but someone completely outside of it.
Jill's family would, of course, be able to bring a claim against the drunk driver, possibly even the bar that served the drunk driver, but the employer would not face any direct liability. There wouldn't be good grounds to sue the employer, under those circumstances.
Where things can get tricky is that sometimes these scenarios overlap. For example, there are times when an employer participates in the workers' compensation program, but a third party kills the employee. In that situation, it means the employee's family can't sue the employer, but they could receive workers' comp. death benefits, and then they could also sue the third party.
The point is that workplace fatality cases can get amazingly complex, which is why you should consult with an attorney. Now that you know the basics, we're going to take a deep dive to explain how and why all of these things work the way they do.
Chapter 2 : A Brief Look at The Three Bodies of Texas Fatal Work Accident Law
As we showed above, the rights and remedies someone has when they lose a loved one on the job vary depending upon circumstances. Some people may look at that and say, "Okay, I get it, when the employer has workers' comp or my loved one was a contractor, my rights and remedies may be different."
But why does it work that way?" The reason is that there is not just one "thing" called "Texas work injury law." Instead, what you have are three separate bodies of law that all overlap to some degree and make a combined thing we euphemistically call "Texas work accident law."
Let me give you an analogy to clarify. Let's say that you bought a car from the dealership, and it had a tire defect that caused you to crash into a light pole. In that accident scenario, you have pieces of:
- contract law,
- personal injury law,
- products liability,
- the Deceptive Trade Practices Act and consumer protection law,
- the law of property,
- and certain sections of the Texas Government Code, since the light pole is likely city property.
All of those pieces from separate bodies of law coalesce to tell you what your rights, remedies, and responsibilities are. If we called all of that "tire defect law," everyone would understand that we are talking about a mixture of different areas of the law mixed together.
Yet, when we talk about fatal work accidents, people tend to believe that there's just one place that they must look to get their answer; one body of law. But it's no different than the example we just discussed, and understanding how fatal work accident cases function requires one to learn pieces of the three bodies of Texas law that dictate how these cases work.
The Three Bodies of Texas Workplace Fatality Law
There are three bodies of Texas workplace fatality law:
- conventional negligence-based wrongful death law
- workers' compensation law
- non-subscriber law
In the next few chapters, we'll go into each of those bodies of law in detail. But before we do, we're going to explain a little bit of the history of how these three bodies of law developed.
The Origins of Negligence Law
In the early days of Texas, most people didn't work for an employer and were instead farmers or small-time artisans. As industry became common, so too, did work injuries.
Back in those days, when an injured worker wanted to receive compensation, their recourse was to sue the employer under a theory of negligence. Negligence is a legal doctrine that is based on the idea that all people in society must conduct themselves in a reasonably safe fashion. When they fail to do so and hurt someone else, they can be brought to court and forced to pay for the harm they caused.
Negligence law developed organically through the common law court system. In other words, no set of lawmakers ever sat down and wrote a statute that said you can sue when someone owes you a duty not to hurt you and then breaches that duty. Instead, judges created the legal doctrine as a matter of logic/natural law/common sense. Judges essentially derived from the human condition the idea that one person is liable to another when he hurts his fellow by acting in a way that is unreasonable.
Negligence law is today the primary tool by which careless people are held legally accountable. It is a robust area of the law that exists in every state and at the federal level. In relatively modern times (the 1970s), the idea emerged that, just the same way that a careless person can be held liable for injuring someone, so too can they be liable for killing someone. Thus, the modern-day doctrine of "wrongful death" was born. This of course means that, for all practical purposes, a "wrongful death case" is essentially a negligence case concerning a death rather than an injury.
Again, all work injury cases used to be negligence cases until the workers' compensation program came into existence.
The Origins of the Workers' Compensation Program
In Germany, in the 1800s, Otto von Bismarck introduced the idea of a workers' compensation program, where companies would basically pay into a fund, and injured workers would receive payments out of that fund. Those payments were made without any consideration of fault or negligence. Merely being hurt while on the job entitled a worker to automatic compensation irrespective of how the injury occurred. For all practical purposes, the German workers' compensation program was a welfare program.
Consider this analogy. Let's say that a few guests have been hurt in the backyard swimming pools at several of your neighbors' houses. A few of your neighbors have been sued because of these injuries and they don't like it. So, your neighborhood forms a lobbying organization and advocates to have a new law passed called the Swimmers' Compensation Act. The Swimmers Compensation Act gets passed, and what it basically says is that all homeowners in Texas have to pay $10 a month to the state. The state puts that money into an account. Now, when someone is injured in a swimming pool, they are no longer allowed to sue. Instead, they can file a "swimmers' comp. claim" which covers their medical bills and will pay them $100 a month in food stamps for 3 years. You may be thinking, "What happens when someone's injuries are really bad or when the pool was abnormally dangerous because the homeowner did something reckless? Shouldn't the victim be able to sue?" Too bad. The "swimmers' comp." law says that the remedy for swimmers is to file a claim. They can no longer sue, and must instead be content with the welfare payments they receive under the swimmers' comp law.
THAT is how workers' compensation laws work.
Texas—and basically every other state—adopted a similar welfare-based work injury scheme in the early 1900s. On paper, these workers' compensation programs provide workers with a financial safety net. The worker gets hurt and then they get paid automatically without the need for a lawsuit.
In reality, there is a tradeoff. Workers are stripped of their common law right to sue the employer for negligence. That right to sue is replaced with a scheme of guaranteed benefits. Whether losing one's right to sue in exchange for guaranteed benefits is a fair tradeoff depends on how generous those guaranteed benefits are, and in Texas, those benefits are not very generous at all.
The Origins of Non-Subscriber Law
To recap, first came negligence law, then came workers' compensation law. Negligence law required injured workers to file lawsuits. Workers' compensation law required guaranteed payments made to workers as a sort of financial safety net.
In every state other than Texas, the right to sue the employer for negligence was entirely eliminated and replaced by a workers' compensation program. This means that in