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Deadly Drunk Driving Accidents: Criminal DWI and Civil Injury Claims for Wrongful Death in Texas

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Under Texas law, Drunk Driving Wrongful Death Liability May Involve a Variety of Responsible Parties

According to the National Highway Traffic Safety Administration (NHTSA), one person dies every 50 minutes in this country from a drunk-driving accident.  Serious and fatal drunk driving crashes remain a very real danger on our roads today, despite public awareness of the risks associated with getting behind the wheel of a motor vehicle while under the influence of alcohol (or drugs).

Criminal Prosecution for Drunk Driving Fatality: DWI Charges

Of course, driving while intoxicated (DWI) is a crime in the State of Texas.  Texas Penal Code §§49.01(2), 49.04.  Simply being pulled over and caught driving drunk can result in a DWI arrest and conviction.

However, when someone is seriously injured or dies as the result of a drunk driver operating a motor vehicle, he or she may face prosecution not only on DWI charges, but also on serious felony charges regarding the injuries or fatalities involved in the crash.

If someone was hurt in the accident, then charges can be brought for intoxication assault under Texas Penal Code §49.07.  When the drunk driving accident has caused the death of someone due to bodily injuries sustained in the crash, things get very serious.  Then prosecutors can add intoxication manslaughter to the DWI charges pursuant to Texas Penal Code §49.08.

For more on DWI criminal prosecutions, read our earlier discussion in “DWI Accidents in Texas: Criminal Defense after Drunk Driving Crash Charges.”

Once again, in these situations there is an overlap between the criminal and civil systems of justice under Texas law.  After a deadly DWI accident, prosecutors may proceed with criminal actions against the drunk driver under the above-described section of the Texas Penal Code.  These cases usually proceed only against the drunk driver alone, and upon conviction that person will face imprisonment, monetary fines, and other criminal punishments.

For the grieving loved ones of a fatal DWI crash, the criminal prosecution provides no legal avenue for relief.  That exists in the independent civil tort system, where wrongful death claims may be asserted.

Civil Claims: Texas’ Wrongful Death Statute

The Texas Legislature has passed legislation that controls any lawsuit filed after the death of someone in a motor vehicle accident caused by a drunk driver.  The Texas Wrongful Death Act (TWDA), found in Texas Civil Practice and Remedies Code Ann. (TCPRC) §§ 71.001-71.012, provides that a civil action for damages may be filed for an individual’s passing if the “wrongful act, neglect, carelessness, unskillfulness, or default” of one party caused the death of another.

Under the TWDA, only certain people are allowed to file a wrongful death claim: (1) the surviving spouse; (2) surviving children (even if they are adults); and (3) parents may file suit.   The decedent’s estate, through its executor, may also file a wrongful death claim if the family members have not filed a petition within three (3) months of the date of death.  Brothers and sisters cannot sue for wrongful death damages in Texas (although they do have standing to sue in other states).  TCPRC §71.004.

Damages Available in a Texas DWI Wrongful Death Case

Not only does Texas law define the parties who are allowed to file claims for damages, it also specifies the exact monetary damages for which the responsible parties may be found legal liable.

In these cases, the plaintiffs are able to seek damages from two perspectives: (1) that of the deceased victim of the drunk driving crash; and (2) that of the surviving loved ones.  A personal-injury claim brought on a deceased person’s behalf is called a “survival action” or “survival claim.” Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex.2005).

In particularly egregious situations, punitive or exemplary damages may also be awarded.

1.  DWI Wrongful Death: Decedent’s Damages

Damages can be awarded for the time period covering the event itself (the drunk driving crash) and the time of the death for the DWI accident victim.  These damages may be substantial if the victim survived the incident only to perish days, weeks, or even months after the drunk driving crash occurred.  They may include things like: medical expenses, lost wages, pain and suffering, and funeral expenses.

2.  DWI Wrongful Death: Family Members’ Damages

Secondly, damages are available to the surviving family members who have suffered the loss of the DWI accident victim. Damages here can include lost companionship and support; lost wages; psychological therapy; and lost inheritance.

3.  DWI Wrongful Death: Exemplary or Punitive Damages

For some wrongful death cases, punitive damages may be awarded where the law seeks to punish the wrongdoer when “the death is caused by the wilful act or omission or gross negligence of the defendant.” TCPRC §71.009.  Exemplary damages can also be argued as necessary in the particular situation to serve as a public warning against drinking and driving.

Who Can Be Liable for Fatal Drunk Driving Accident Damages?

Any number of parties may become defendants in the aftermath of a fatal drunk driving accident where someone has died because of the decision of another to get behind the wheel of a motor vehicle while under the influence of alcohol.  These include:

1.  Drunk Driver

In a fatal drunk driving accident, the driver who has been charged with driving while intoxicated and /or intoxication manslaughter can be sued for civil tort damages by those who have been harmed as a result of the fatal DWI crash.  These claims will involve allegations that coincide factually with the criminal prosecution of the drunk driving charges, but will be filed and pursued independently of the criminal justice system.

The plaintiffs will have to plead and prove a basic negligence case:

(1) the driver owed a duty to drive in a reasonable and prudent manner on the road;

(2) he or she breached that duty by driving while under the influence of alcohol;

(3) this breach of duty resulted in the crash; and

(4) as a result of the crash, the victim suffered serious and fatal bodily injuries.

Damages here can include medical bills, lost wages, pain and suffering, and other wrongful death damages as well as potential exemplary damages if the driver can be shown to have acted in a willful act or willful failure to act (omission).

In many instances, the drunk driver will be represented by his insurance carrier with an experienced claims adjuster and defense counsel working hard to limit the driver’s liability and the company’s exposure to coverage for the financial damages.

2.  Parents of Drunk Driver

In Texas, parents of teen drivers who cause a fatal drunk driving accident can be held legally liable for the DWI crash under the theory of “negligent entrustment.”

Under this legal doctrine, the parents – as owners of the vehicle – can be held financially liable for the negligent driving of their teenage son or daughter if it is shown with admissible evidence that the elements of “negligent entrustment” defined by the Texas Supreme Court in Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex.1987) exist, i.e.:

  • The parent entrusted the vehicle to their child;
  • The child was an unlicensed, incompetent, or reckless driver;
  • The parent knew or should have known that their son or daughter was unlicensed, incompetent, or a reckless driver;
  • The son or daughter was negligent on the occasion in question; and
  • The child entrusted with the vehicle negligently caused the fatal car accident.

3.  Employer of Drunk Driver

When someone is on the job, his or her employer has certain legal responsibilities regarding that employee.  If the employee was working at the time of a fatal drunk driving accident, then that employer may be held legally liable for the resulting DWI Crash damages.

In these situations, the employee must be shown to have been on the job and in the course and scope of their employment at the time of the drunk driving accident.  The employer must also be shown to have some foreseeable knowledge that the driver might be drunk and cause an accident.

Under Texas precedent, an employer who negligently hires, retains, or supervises an incompetent or unfit individual may be directly liable to a third party whose injury was proximately caused by the employee’s negligent or intentional act. Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex.App.—Houston [1st Dist.] 1999, pet. denied)citing Mackey v. U.P. Enterprises, Inc., 935 S.W.2d 446, 459 (Tex.App.—Tyler 1996, no writ)accord Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 294 (Tex. 1996).

4.  Business (Bar, Restaurant, Liquor Store, etc.) That Served, Sold, or Provided Alcohol

Under the Texas Dram Shop Act (Tex. Alco. Bev. Code Ann. § 2.02(b)), any business that sells alcohol to an impaired driver can be liable for the resulting fatal drunk driving accident caused by that impaired individual.

The Texas Legislature mandates that this law is the “exclusive remedy” for establishing the liability of businesses for “the actions of their employees, customers, members, or guests who are or become intoxicated”  and it is the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older. Tex. Alco. Bev. Code Ann. § 2.03.

The bar, restaurant, hotel, liquor store, or other commercial operation that sells alcoholic beverages can be held liable for drunk driving fatalities if two things can be established with admissible evidence:

(1)  at the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others;  and

(2)  the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.

5.  Social Host to Teens Under 18 Years Old Who Are Drunk Drivers

Also included in the Texas Dram Shop Act are provisions for situations where teenagers are given alcohol and then go out and drive, causing a fatal accident.  This is called the “social host liability” provision of the statute.  Tex. Alco. Bev. Code Ann. § 2.02(c).

When the deadly drunk driving accident involves someone under the age of 18 years, then any adult who is at least 21 years of age can be found liable for damages proximately caused by the intoxication of this minor driver if:

(1)  the adult is not: (a) the minor’s parent, guardian, or spouse; or (b) an adult in whose custody the minor has been committed by a court; and

(2)  the adult knowingly:

(A)  served or provided to the minor any of the alcoholic beverages that contributed to the minor’s intoxication; or

(B)  allowed the minor to be served or provided any of the alcoholic beverages that contributed to the minor’s intoxication on the premises owned or leased by the adult.

Notice that this provision applies not only to bartenders or wait staff in a club or restaurant, but also to anyone hosting a party or event where alcoholic beverages are provided.

Also of note:  a lawsuit can be filed seeking damages based upon the Texas Dram Shop Act alongside any other claims filed by grieving family members and/or the decedent’s estate against the drunk driver individually.  In Texas, a business or social host which knowingly provided alcohol to an intoxicated person can be held financially liable for a resulting fatal DWI accident under the Dram Shop Act even if the jury also finds the drunk driver liable for damages, as well.  Liquor liability insurance policies carried by the business or establishment may provide coverage in these cases.

Injury Claims after Fatal Texas Drunk Driving Accident

The shock of a loved one being involved in a fatal motor vehicle accident is always severe.  It can take some time before loved ones can assess things and make decisions about things like investigating the possibility of injury claims being filed alongside any criminal investigations or prosecutions.

It is important for grieving family members to understand that prosecutors have no duty to explain the possibility of wrongful death claims being filed in civil court.  They probably will not warn the victim’s loved ones that there are “statutes of limitations” that enact filing deadlines in these matters that must be met, or the most valid claims will be barred as a matter of law.

Any fatal DWI accident in the State of Texas may have a corresponding civil personal injury and wrongful death case available under the law where damages can be awarded and not only the drunk driver but others (such as parents, employers, bar owners, or party hosts) can also be held legal liable.

For other examples of where criminal law overlaps with civil injury claims, see:



For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,”Pre-Arrest Criminal Investigations.”

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