Texas Court Issues Wrongful Death Opinion
In Smith v. East, a wrongful death case recently decided by the Austin Court of Appeals, a liquor store allegedly sold alcohol to a seventeen year old child, “S.S.” Cause No. 03-11-00800-CV (Tex. App.–Austin, Feb. 21, 2013, no pet. h.). Making matters worse, the liquor store had allegedly sold alcohol to S.S. repeatedly since she was sixteen. When S.S. died of alcohol poisoning after consuming alcohol she allegedly purchased from the liquor store, her mother filed a wrongful death and survival suit, individually and on behalf of S.S. At trial, the store’s owners attempted to avoid liability by blaming S.S. and her mother for her death. The jury apportioned responsibility 35% to the store’s owners, 25% to S.S., and 40% to S.S.’s mother and awarded $646,269.00 in damages.
Under Chapter 33 of the Texas Civil Practice and Remedies Code, a plaintiff’s negligence can bar his recovery—section 33.001 provides that “a claimant may not recover damages if his percentage of responsibility is greater than 50 percent.” The trial court granted a directed verdict in favor of the defendants, finding that the 51% bar under section 33.001 prevented the plaintiffs from any recovery.
The Austin Court of Appeals affirmed the trial court’s decision, relying on Drilex Systems, Inc. v. Flores, 1 S.W.3d 112, 115 (Tex. 1999). Drilex was a settlement credit case in which an injured worker sued several defendants for a job-related injury, and his wife and three children joined in the suit as derivative plaintiffs. The Texas Supreme Court ultimately held that the term “claimant” in section 33.012(b)(1) included all of the family members.
The Austin Court of Appeals found the holding of Drilex to be binding. The court refused to give credence to two cases from the Corpus Christi court of appeals that had previously rejected the reasoning of Drilex with respect to the 51% bar issue. See Sanchez v. Brownsville Sports Ctr., Inc., 51 S.W.3d 643 (Tex. App.—Corpus Christi 2001, no pet.) and Salinas v. Kristensen, No. 13-08-00110-CV, 2009 WL 4263107 (Tex. App.—Corpus Christi Nov. 25, 2009, pet. denied) (mem. op.); see id. at *6 (Vela, J., dissenting). Both Sanchez and Salinas involved wrongful-death and survival claims asserted by two parents of a deceased child. In each case, a jury found that the two parents collectively, but not individually, were responsible for more than 50% of their child’s death, and the defendant attempted to invoke section 33.001 to bar either parent from recovering. The Salinas defendants relied on Drilex in support of their argument. Rejecting this argument, the Corpus Christi Court reasoned that Drilex was distinguishable because it involved the issue of settlement credits, not the right of each parent to recover damages under the wrongful-death statute in light of chapter 33. See id. at *4.
The Austin Court of Appeals distinguished the reasoning of Sanchez and Salinas on the basis that they “involved claims asserted by two different wrongful-death beneficiaries and the issue of whether the contributory negligence of the two beneficiaries collectively could bar recovery under section 33.001.” But this distinction should have no bearing on the issue of whether a parent and her deceased child are “claimants” under Section 33.001 – the statute does not mention “beneficiaries.” A parent in a wrongful death suit is suing in her individual capacity as well as on behalf of her child. Moreover, if the jury is asked to apportion responsibility separately among the deceased child and the parent, it would only seem fair that each would be considered a “claimant,” meaning that the 51% bar should apply only if the jury apportions responsibility of more than 50% to one of them. Their collective proportionate responsibility should not be aggregated to bar recovery. It would appear that under the reasoning of the Austin Court of Appeals, recovery would not be barred if both of S.S.’s parents had filed suit, and the jury had apportioned 25% to S.S., 20% to S.S.’s mother, and 20% to S.S.’s father. It would make no sense for recovery to turn on whether two parents filed a wrongful death suit instead of one, as this distinction is found nowhere in Chapter 33.
The Smith case was only recently decided, and the deadline for filing a motion for rehearing or a petition for review with the Supreme Court of Texas has not yet expired as of the date of this post. This wrongful death case should be addressed by the Supreme Court of Texas or the legislature to address the confusion created by the use of the singular “claimant” in section 33.001.
Author: Josh Borsellino