When a loved one is taken from us, it’s only natural to look for someone to blame. While sometimes an accident is just an accident, and a tragedy just a tragedy . . . sometimes it IS someone’s fault. Even when it is not a deliberate murder, it is possible for someone to have caused your loved one’s demise through carelessness or negligence. That’s where the Texas Wrongful Death Statute comes in.
How Does Texas Define Wrongful Death?
Under Chapter 71 of the Texas Civil Practice and Remedies Code, wrongful death claims can be filed by certain parties if the death is caused by the wrongful act, carelessness, unskillfulness, neglect, or default of another person or corporation.
The operative word in the Texas Wrongful Death Statute is “wrongful.” Instead of just being an uncontrollable accident or coincidence, someone or some entity had to have committed a bad action. Here are a few examples:
- A man takes a defective prescription drug for cholesterol that gives him cancer. While he is still alive, he has a personal injury claim, but when and if he dies of cancer, his family will have a wrongful death claim.
- A drunk driver falls asleep at the wheel and crosses the median, killing the driver of an oncoming car. The deceased driver’s family will have a case under the Texas Wrongful Death Statute.
- A child is born with a birth defect that means it won’t live outside of the womb. Despite the doctor’s best efforts, the child dies within minutes of being born. Despite the tragedy of the child’s death, there is nothing the doctor could have done to save it, and the parents do NOT have a wrongful death claim.
In these examples, you’ll notice that a personal injury claim can become a wrongful death claim once the victim dies, and that not all tragic deaths can result in a wrongful death claim.
Under Texas law, the surviving siblings of a decedent cannot file a wrongful death claim. Siblings are not even part of a claim if it is grouped together by the parents, children, or surviving spouse of the decedent.
Who Can File a Wrongful Death Claim?
According to the Texas Wrongful Death Statute, claims may be filed as a single action or the members of the family can group together to file a claim. Family members who may file a wrongful death claim include the surviving spouse, the children, and the parents of the decedent. In some cases, an adopted child may file a wrongful death claim if the adoption was legally and fully completed. Adoptive parents may also file a wrongful death claim for their adopted child.
Consumer Magazine Warns while Injuries Pile Up
60 Millions de Consommateurs warned readers about this product defect after more than 6o reports of related injuries surfaced. Consumers reported broken teeth, tinnitus, multiple fractures and, in one case, the loss of an eye.
One victim told RTL radio in 2013: “I had six broken ribs and my sternum was broken. At the hospital, I was told that if the shock and blast had been in front of the heart, I would be dead by now.” Tragically, for Rebecca Burger, this warning did not reach her in time to save her life.
Manufacturer Denies Product Liability
Ard’Time, the manufacturer of the dispenser that killed Burger, admits the product defect, but denies liability in her death, because they issued a product recall in 2013. However, of the 160,000 dispensers sold, only 25,000 were returned. “We did all we could to alert everyone,” a spokesperson for Ard’Time said. “We couldn’t do any more.”
But, couldn’t they do more? According to 60 Millions de Consommateurs, “It took almost a year and after two serious accidents in February 2014, before [the supermarket chain] Auchan, the biggest distributor of these utensils, finally took the decision to write to 50,000 customers who had a loyalty card and had bought the Ard’Time siphon.” They called for Ard’Time to organize a full-scale, national recall campaign to alert consumers of the product defect.
“In four years we have counted more than 20 accidents involving the Art’Time siphon and in seven years about 60 accident of all makes, some causing very serious injuries. But these figures are no doubt well below the real number of accidents.”
“We can only regret this accident, even though at this stage a link between the accident and our label has not been established. We do not accept that we have done nothing since February 2013, when the first incident involving an Ard’Time siphon was reported.”
Manufacturer of dispenser with product defect
Does the Family Have a Product Liability Case?
Product recalls exist as a remedy in addition to other legal remedies. Even if a product is recalled and compensation is offered, victims of defect-related injury or death can still file suit against the manufacturer.
There are three common types of defective products claims that can be brought: 1) manufacturing defect cases alleging a mistake in the manufacturing process, 2) design defect cases alleging that a product was unsafely designed (e.g. lack of safety features), and 3) failure to warn cases in which a manufacturer or seller failed to include proper warnings.
Contacting an attorney as soon as possible after an injury can be critical as proving a defective product claim requires that a plaintiff show that: 1) the product was defectively designed or manufactured (or did not include proper warnings); 2) that the product has not been modified/changed by the time the plaintiff received it; 3) that the defect presented an unreasonable danger; and 4) the defect caused the plaintiff’s injuries.
Contact Shamieh Law
If you have an injury, or have lost a loved one, due to a product defect, don’t let the product manufacturer hide behind a recall. A recall does not make you whole again. Perhaps nothing can, but our firm will negotiate and/or litigate a full award on your behalf as quickly as possible. Contact us today to schedule a consultation.
In an instant, a healthy and vibrant woman was cut down by a completely avoidable product malfunction. Her family deserves restitution. If something like this has happened to you or your loved one, you have legal recourse. You have Shamieh Law.