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Texas Fatal Work Accident Law Explained in Vivid Detail

Texas fatal work accident law can be nothing short of baffling for all but the most experienced lawyers. This is because fatal work accident cases are essentially a “law casserole” made from numerous different sections of Texas law, including bits and pieces of:

  • The Texas Labor Code
  • The Civil Practices and Remedies Code
  • The Wrongful Death Act
  • Texas constitutional law, and
  • …decades of Texas Supreme Court decisions

In other words, in their attempts to find the fine line between protecting the interests of businesses and offering grieving families a chance to obtain justice after they’ve lost a loved one, Texas lawmakers and judges have unintentionally created a patchwork of laws which collectively determine when and if you can use the court system to hold a negligent employer accountable. To make an already complex legal situation even murkier, the limited number of Texas attorneys who actually are familiar enough with all of these laws to explain your rights have historically kept this information to themselves.

Well, no more. We’re of the mindset that losing a loved one to a work accident is difficult enough without lawyers trying to hide the ball, so we’re going to buck tradition and explain literally everything about how this area of the law works. By the time you’ve finished reading this article you will know:

  1. What your rights are
  2. Who is legally responsible for your loved one’s death
  3. Whether you can sue the employer, receive death benefits, or both
  4. The various types of work injury cases

Let’s Start With a Summary

Work-related death cases are based on the underlying work injury law. So whatever the law says about a particular workers’ rights to be compensated for an injury claim, the same holds true for their family’s wrongful death claim, should the worker lose his life.

But don’t all workers have the same work injury rights under Texas law? Actually, no. In fact, there are two totally different sets of rights that workers may have. The factor that determines which rights any given worker has is their employer’s insurance coverage decision. As strange as that sounds, that’s exactly how it works.

You see, Texas law has created a special type of insurance coverage that, when purchased by an employer, puts the employer into a “protected class” wherein they are immune from work injury lawsuits based on their negligence. So, if the employer buys this special coverage, the worker and their family has one set of rights. If the employer opts out of this special coverage, then the worker and their family has an entirely different set of rights. The the employee has dictate which type of claim the worker or their family can file.

The different kinds of claims are:

  • Workers’ compensation cases (which are basically work injury welfare claims)
  • Non-subscriber claims (which are basically typical lawsuit cases)

Let’s talk about those briefly.

Fatal Workers’ Compensation Cases

Workers’ compensation is a phrase that everyone uses colloquially to mean “generic work injury payments,” but there’s much more to it than that. Workers’ compensation is not a phrase used to describe work injury money, it’s actually the formal name for an entire system of processing work injury claims that completely replaces the jury trial. So, rather than allowing employees to sue their employers, the workers’ compensation system is setup like a type of work injury welfare system, and the system dispenses disability-type payments to injured workers in lieu if the right to sue the company they work for. The employer chooses whether the company participates in this system, not the employee. Consequently, the employer effectively chooses for the worker and their family which rights they have.

If an injured worker’s employer opts into this system, then the worker can file for benefits but they forever lose the right to sue the employer while the employer is covered under a workers’ comp plan. By extension, the family of a deceased worker is also unable to sue the employer (typically), and can instead only file for workers’ compensation death benefits.

Here are the positives and negatives of the workers’ compensation system:

  • The positive side of workers’ comp cases is that the worker or their family members get guaranteed benefits from something akin “work injury welfare system,” so it’s a low conflict system as opposed to the adversarial court system. Further, the employer is liable by default, so you don’t have to prove that they were negligent in order to get benefits.
  • The negative side of workers’ comp cases is that the guaranteed benefits are worth very little, lawsuits against the employer on the basis that employer’s negligence caused the worker to die are not allowed*, and all benefits paid out are subject to fairly harsh limits and restrictions. For instance, if you lose a spouse to a work injury and then later remarry, they workers’ comp carrier is allowed to stop paying you.

*It should be pointed out that there is one set of circumstances by which you can still sue the employer, but only under very specific circumstances. More on this below.

Fatal Non-Subscriber Cases

Non-subscriber cases are nothing more than work injury cases against employers who choose “not to subscribe” to the aforementioned workers’ comp system. If the employer is a non-subscriber, then the injured worker’s family does not have a “work injury welfare” system to seek benefits from. Instead, non-subscriber cases are really just regular negligence-based lawsuits (not much different than a car accident case) against the employer on the basis that the employer’s negligence caused the worker’s fatal injuries.

Here are the positives and negatives of non-subscriber cases:

  • The positive side of non-subscriber cases is that injured workers or their families can sue the employer and take them to court in pursuit of significant compensation. Normal civil justice can be pursued in the form of an old-fashioned court case, which is in stark contrast to the convoluted workers’ comp system.
  • The negative side of non-subscriber cases is that there are no guaranteed or automatic payments. You either beat the employer in court and get compensated, or you lose and get nothing.

Again, the most important thing that you must understand is that the rights of a family member to seek compensation from a negligent employer and the value of the compensation they can seek is entirely determined by whether the employer buys into the workers’ comp system or chooses not to subscribe to it. That determines everything.

  • General overview of fatal non-subscriber cases
  • Damages and compensation
  • Proving your employer was negligent
  • Who can file a claim?
  • Relevant examples from cases we’ve handled
  • The employer is vicariously liable for co-workers

Read more:

Applicable Laws

As you just read, Texas fatal work accident cases are divided into two completely different types of cases. This delineation is a byproduct of laws created in the early 90s, but that’s just the starting point. Numerous other areas of the law also contribute to the collective understanding of what a family’s rights are following the loss of a loved one. Here, we’ll discuss the relevant laws and explain what they contribute to the equation.

  • Texas Labor Code

    This is an area of the law that dictates to employers when they are allowed to fire employees, how overtime pay works, when an employee can file for unemployment benefits, etc. However, in 1993 Texas lawmakers decided to completely revamp the rights of injured workers by making a brand new set of “workers’ compensation” laws. Since they were basically replacing the right to a trial by jury that workers have possessed since the early days of Texas’ founding, it’s only fitting that they wrote these new laws into the Labor Code rather than into the body of code devoted to personal injury law. The Labor Code is where the concept of workers’ compensation cases and nonsubscriber cases comes from. Further, it sets the formula for determining the value of workers’ comp benefits, which family members can file death benefit claims and which cannot, the defenses an employer is allowed to use to fight your claim, etc. Simply put, the Texas Labor Code is ground zero for much of the state’s modern day work injury laws.

  • Civil Practices and Remedies Code

    The CPRC is the body of Texas law devoted to personal injury law. Although this is where the majority of our state’s personal injury laws are found, as we mentioned in the preceding section, most of our state’s work injury laws are actually not found here. However, the CPRC is still plays a very important role in fatal work accident cases. It breaks down like this:

    • The Texas Labor Code spells out the details of the workers’ comp system, including the right to pursue a non-subscriber case against employers who opt out of workers’ comp.
    • Since non-subscriber cases are essentially regular negligence lawsuits, the when, where, how, and why of non-sub cases comes from the CPRC or it comes from age-old court precedent, much of which is defined, limited, or otherwise “massaged” by the CPRC.
  • Texas Wrongful Death Act

    The TWDA is a subsection of the CPRC. The significance of this law as it relates to workplace fatalities is that, in cases against non-subscribers, it spells out which family members are allowed to sue and which ones are not. Specifically, the TWDA states that parents of the deceased, children of the deceased, and the spouse of the deceased are allowed to file.

  • Texas Constitution

    The Texas Constitution, specifically Article 16, section 26, effectively says that businesses who take a worker’s life by way of gross negligence (as opposed to ordinary negligence) are liable to the family of the worker for punitive damages. When lawmakers invented our modern form of workers’ compensation (which was largely created to protect employers from lawsuits), they could not disallow family members from suing grossly negligent employers since doing so would be a violation of the Texas Constitution. As such, this constitutional language is a necessary inclusion in any discussion of Texas work injury law.

  • Decisions of the Supreme Court of Texas

    The job of the the Supreme Court of Texas is to interpret the law, and their interpretations are binding on all subsequent cases (this is known as precedent). The SCOT routinely hears work injury cases and their decisions have, at times, unilaterally changed how the law had always been interpreted. Since the overwhelming majority of their decisions have been favorable to business interests, it is vital that those pursuing a case against a business be represented by legal counsel who “keep their ear to the ground” with regard to any developments in Supreme Court decisions.

Rights of Family Members When Employer Has Workers’ Comp Coverage

If the employer has workers’ comp coverage and an employee is killed on the job, certain family members can seek compensation. As we discussed earlier, some accidents are caused by ordinary negligence and others are caused by gross negligence. The legal remedy available to the victim’s family therefore depends on whether ordinary of gross negligence occurred.

If the death occurred:

  • Due to ordinary negligence (or the fault of the worker themselves):
    • The victim’s spouse and children are eligible to receive Death Benefits. Death Benefits are weekly payments made by the employer’s WC insurance carrier. These payments are calculated as 75% of the deceased worker’s average weekly wage, not to exceed the State Average Weekly Wage.
    • Whoever paid for the funeral is eligible to receive Burial Benefits
    • The victim’s mother and father can pursue a claim for Death Benefits, but only if the victim had no spouse or children.
  • Due to gross negligence:
    • The victim’s spouse or children can can sue the employer for punitive damages. Punitive damages are monies that a jury forces the defendant to pay as punishment for their misconduct. The worker’s family must furnish sufficient proof to warrant a jury verdict of punitive damages, and the standard of proof is particularly high. If, for instance, the jury awards $1,000,000 in damages for things like lost wages, pain and suffering, etc., but they do not award any money for punitive damages, then the family receives no compensation at all. Damages such as lost wages and pain and suffering are called “compensatory damages” and they are fundamentally different than punitive damages. The way the lawmakers see it, the family’s right to sue for compensatory damages has been replaced by workers’ comp benefits, so all that remains to actually sue for is the punitive damages when and if it can be proven that the employer was grossly negligent in causing the worker’s death.
    • The victim’s mother and father are not allowed to sue for gross negligence.

    The takeaway from this section is that fault does not matter in a workplace fatality case wherein the employer subscribes to workers’ compensation coverage, UNLESS the employer was extraordinarily negligent to such an extent that it warrants suing them for punitive damages. While you may think that such gross negligence cases are rare, we have won many of them over the years. Although it sounds far fetched, the sad reality is that many employers do in fact engage in grotesque conduct that can lead to the death of an employee. If a loved one is lost to an on-the-job accident and the employer subscribes to WC, it is always a good idea to have an attorney at least investigate the possibility of gross negligence on the part of the employer.

    Rights of Family Members When Employer is a Non-Subscriber

    When an employer chooses not to subscribe to WC, they waive their right to protection from lawsuits that workers’ comp coverage offers, and the case is handled much like any other negligence case. However, there are a few implications that need to be addressed.

    First, non-subscribing employers are not liable by default as are employers who subscribe to WC. So instead of saying, “if the employer is a non-subscriber you CAN sue them,” we should really say, “If the employer is a non-subscriber YOU MUST sue them. to get any compensation, unless they are just feeling generous and wish to voluntarily compensate you,” Just like a store owner whose negligence causes you to slip and fall, or a driver who runs a stop sign and hits your car, or a person who breaches a contract with you, they owe you nothing by default and you must sue them and prove their negligence. Only then are they liable to pay.

    Earlier, we mentioned that when the employer does have WC that family members may take the case to trial and a jury may award compensatory damages and punitive damages, but the family is only able to collect the punitive damages portion of the jury award, and the employer effectively gets to substitute the WC Death Benefits as payment of compensatory damages. On the contrary, in a non-subscriber workplace fatality case, the family of the deceased worker is able to keep both compensatory and punitive damages (subject to ordinary restrictions that apply to all cases, not just work injury cases) awarded by a jury.

    This means that there is potentially a lot at stake in non-subscriber workplace fatality cases. For comparison sake, we recently litigated a case against a non-subscribing employer following a work accident, wherein a loading dock employe was back over by an 18-wheeler driven by a co-worker. We sued the employer, fought a long battle over the course of a year and a half, and ultimately resolved the case to the tune of multiple 7 figures. Much the opposite, we know an attorney who represented a family whose breadwinner was killed in nearly identical circumstances, yet the employer had WC coverage, and the entire payout was closer to two hundred thousand dollars. The point is that non-subscriber cases are not handicapped in the same way that WC cases are.

    Additionally, any relative who can normally file a wrongful death case under any other area of injury law is likewise able to file against a non-subscriber following a fatal work accident. Specifically, this means that the deceased worker’s mother, father, spouse, and children can all file suit against the employer. Their claims for wrongful death are rooted in the concept that they, the victim’s family, have suffered due to losing a loved one. So the victim’s family is effectively suing for their own mental anguish. But, in addition to that, they may also bring what is called a Survival Claim against the employer for the victim’s pain and suffering that he or she endured prior to passing away.

    Employers are Liable for Injuries Caused by Co-Workers

    If the employer has workers’ comp coverage, it really doesn’t matter how the accident happened (unless it happened due to gross negligence since that opens a new avenue for suing), you’re eligible to receive benefits and that’s all there is to it. Whether the accident was caused by the supervisor, a co-worker, or the deceased worker themselves, the employer is automatically liable for any accidents caused by ordinary negligence.

    However, in non-subscriber cases, how the accident happened is of grave importance. In many cases, the employer is directly liable, and you sue them as we described above. But there are also cases where the employer is indirectly liable, such as when a co-worker’ negligence causes the employee to lose his life. According to Texas law, if a co-worker’s negligence causes an employee’s death, the employer is liable in all but the most unusual circumstances. This is a legal concept as old as law itself known as respondeat superior, which is Latin for “let the master answer (for the sins of the servant).”

    At first glance, many people find this to be an outrageous concept. “Why should the employer be responsible for the conduct of their employees?” The answer is rooted in the notion that if employers gladly benefit from the work that their employees do, then they also must share equally in the messes they make. For instance, Burger King is happy to have all of the income their employees’ labor helps produce, and, more specifically, Mr. Burger King is benefitted by employee labor and the authority he places his staff, since is means he does not have to be there to personally conduct every transaction since the employees are doing the work for him. Well, he can’t reap the benefit of having employees act on his behalf and then turn his back to the employees when they make a mistake. No, he’s answerable for their conduct, both good and bad.

    However, if a co-worker of the deceased engages in an activity that is far enough outside of the realm of what his employer hired him to do and that results in the death of a fellow worker, then respondeat superior does not apply and the liability falls on the co-worker directly.

    Claims Against a Third Party

    If injury is caused by someone other than the employer, that’s a what we call a “third party” case. Third party cases are technically not work injury cases, they are negligence cases against the third party (the injured worker just happens to have been on the job when the third-party’s negligence transpired).

    Now, if the deceased worker’s employer has WC coverage, the worker’s family can still file for WC benefits as a form of temporary relief AND they can sue the third party. Remember, WC benefits are paid irrespective of fault, so if the worker is killed while on the clock, even if it’s the fault of some third party, the WC carrier is still liable to pay WC benefits. But there’s a catch. When and if a lawsuit against the third party is successful, though, the family is often required to reimburse the workers’ comp carrier for the benefits paid out, but it’s still almost always worthwhile to go this route.

    If the employer is a non-subscriber, though, recall that they are never automatically liable to pay anything, so they will likely not voluntarily pay money to the worker’s family while the family pursues a claim against the third party.

    Here are some common scenarios where a third-party claim is possible

    • Machinery defects
      • A worker is killed by a piece of defective equipment. If the employer caused the machinery to fail, then that would represent a claim against them, but many equipment or machinery injuries are the result of design flaws or defects on the part of the manufacturer of the piece of equipment, so they should be held accountable.
    • Car accidents while on the job
      • Many workers drive while on duty (traveling salespersons, delivery drivers, police officer, etc.). If they are killed by a motorist, their family’s claim would be against that motorist, rather than the employer, unless the employer did something to dramatically increase the chances that the worker would be hurt, such as providing them with a company car that didn’t operate properly, or, as is common, by forcing over-the-road drivers to drive to the point of fatigue.
    • Loading dock accidents
      • When an employee works for a factory or other company that operates a loading dock, often times the trucks that run over loading dock employees are under the employ of an altogether different company. When that’s the case, the family of the injured loading dock employee will have a case against someone other than their employer.
    • Construction site accidents
      • Construction sites often represent the perfect storm of dangerous working conditions. In any given commercial construction project, workers can be surrounded by machinery, equipment, materials, and workers from numerous different companies. Fatalities which occur at construction sites often involve multiple defendants other than the employer of the deceased.


    Anyone you sue or file any type of claim against has the legal right to defend themselves from your claim. In more typical personal injury cases, such as car wrecks or dog bites, there are quite a few generic, off-the-shelf defenses that can be used to fend off your claim. However, in either a workers’ compensation claim or a non-subscriber claim, the the various work injury statutes found in the labor code dictate precisely which defenses can be used by employers, and all others fall by the wayside.

    In a workers’ compensation claim, the employer and their insurance carrier can defend the claim with the following arguments:

    • The accident was an act of God
    • The injury was caused by horseplay
    • The injury was deliberately self-inflicted
    • The employee tested positive for illegal drugs or alcohol
    • A co-worker intentionally hurt the employee
    • The employee was harmed while participating in a non-work-related recreational activity

    In a claim against a non-subscribing employer, the Texas Labor Code only allows the employer to defend themselves using the following arguments:

    • The employee’s own conduct was the sole proximate cause of his own death
    • The employee tested positive for illegal drugs or alcohol
    • The employee deliberately hurt themselves

    In addition to those defenses created by statute, the Supreme Court of Texas has interpreted the law to implicitly sanction a couple of additional defenses:

    • The employee was killed by a “commonly known hazard,” and the employer is therefore not responsible for warning the employee about or protecting him from such hazards
    • The danger was part of the employee’s “routine job” functions

    To be completely frank, no one yet knows exactly when and how the last two apply. They are the byproduct of some recent Supreme Court interpretations of the law, so precisely how far these defenses reach, and/or what exactly constitutes “routine danger” is a matter of some confusion. In short, no one will know the answer until the Supreme Court hears more cases that clear the issue up.

    Lastly, whether we’re talking about a workers’ compensation death case or a non-subscriber death case, the employer is only ever liable if the employee is on the job. That may seem obvious, but there are many tasks where the employee’s status is kind of ambiguous. For instance, what if he is a delivery driver and he gets hurt when he stops to go to the restroom at a gas station? What if a worker is killed while walking to into work from the employee parking lot? The legal topic at work here is called “course and scope,” and this is another area where the Texas Supreme Court has ruled which activities constitute being within the course and scope and which ones do not. When a defendant feels that the employee wasn’t technically on the job even though you think they were, this is called a “course and scope” defense. They’re essentially saying that your case isn’t valid since the worker was not technically working.

    Investigating a Workplace Fatality

    Every fatal workplace accident warrants a thorough investigation. The problem is that most of the state-sponsored investigative teams have their own prerogative that has nothing to do with helping families with their lawsuit. In nearly every workplace death case we are hired to represent the family in, some well-meaning relative will “advise” our clients to “wait until the OSHA report is ready, and then see whether you need to sue or not.” This is terrible advice for a couple of reasons.

    As was already insinuated, OSHA or the local police will likely investigate, but they are simply looking for evidence that has little or nothing to do with winning a legal case. The police are really there just for basic fact finding and to verify that a crime was not committed, so there’s not much to say about their involvement. OSHA is the elephant in the room in most serious occupational accidents, but their powers are severely limited and they are self-serving. For instance, if OSHA finds that the employer committed several serious violations, they can fine the employer, but that money goes to OSHA and it’s usually a slap on the wrist. When the BP plant exploded near Houston a few years back, OSHA went ballistic on BP and they levied millions of dollars in fines against the refinery. However, those millions of dollars in fines were for literally hundreds of violations. In more normal workplace fatality scenarios, OSHA normally imposes no more than a few thousand dollars in fines. They are hardly the heavy-handed champion of the working man that they are believed to be in popular culture.

    That said, we’re not implying that OSHA is anything less than highly effective and important. Not at all. What we’re stating is that what most people expect of OSHA does not accurately reflect what their true purpose is. They are not good at helping you win a work injury case because that’s not their job.

    So if OSHA and/or the police are not the organizations whose findings should serve as the basis for your case, who is? The short answer is that legal cases need certain ingredients to be successful, so having anyone other than an attorney running the investigation will produce informative but unhelpful answers. To be clear, our firm believes strongly in having our attorneys actually go out into the field and participate in the investigation, but this is a rare trait amongst law firms. Additionally, even though we firmly believe that a lawyer should be there to call the shots, lawyers alone cannot conduct the entirety of an investigation for the simple fact that lawyers are legal experts, not workplace safety experts. Sure, in our case work we have learned far more about workplace safety than most people will ever need to know, but there are true experts in the field of workplace safety, and we use their services to unravel what happened in a fatal work accident.

    Using the loading dock accident we mentioned earlier as an example, in that case we went to the scene to investigate, but we brought along with us a warehouse safety expert, a trucking regulations expert, and a general investigator to help interview witnesses. These experts found things that OSHA never thought to include in their report (which wasn’t even ready until 7 months late).

    If the employer you’re bringing a case against has workers’ compensation, the investigation needs to dig deep into the systemic problems that led to the accident in order to unearth evidence of gross negligence. In a non-subscriber case, any evidence of negligence is helpful. The most important thing for you to understand is that if you intend to bring a claim against an employer, the evidence necessary to win the case is not going to sit around and wait for you. You will need to have an attorney collect and document the evidence, the sooner the better.

    Responsibility of employer

    We are often asked by the families of deceased workers, “what are the employer’s responsibilities to protect their workers?

    Companies are indeed required by law to provide employees with a safe work environment, which includes:

    • seeking out and eliminating safety hazards before harm is caused
    • providing fully-functional machinery and equipment
    • providing safety gear
    • providing adequate training.

    But the interesting (and disturbing) part is that even though the law clearly requires this of employers, your ability to do something about it is more limited now than ever before. So if an employer makes a mistake that hurts an employee, sure, the law says they should be accountable, yet other laws limit their accountability. Without the fear of punishment, how can laws which require employers to act safely truly be effective?

    If you’ve lost a loved one, you’re in pain. There’s no way around it, and it is utterly uncouth to place a burden on your shoulders when you are already suffering immensely. Yet, the path you choose to take regarding legal action against your loved one’s employer will affect the lives of other workers. As cold and dystopic as it sounds, we truly live in a state where the rights of those who inflict harm on their employees are increasing, while the rights of the injured and deceased are contracting. Far too few workplace fatalities result in legal action anymore, which means that many employers whose negligence causes the death of a worker are literally breaking the law and escaping justice. As you decide what path you wish to take, plus understand that your lawsuit is about more than compensation or justice for your family, it’s about accountability for industry as a whole.

    Lastly, we’re not oblivious to the concerns of business or the motivations of lawmakers. We understand the economic benefit for the state that goes along with legal protection of businesses. But as with most matters of public policy, it’s all a matter of degree, and we think that the pendulum has swung too far in the wrong direction. Until public opinion changes and lawmakers tighten the reins on workplace safety violators once again, we will continue to treat every workplace fatality case as an opportunity to disincentivize negligence by taking wrongdoers to task in the courtroom.

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