Texas Workers’ Compensation:
Gross Negligence Resulting In Death
In Texas, employers who are subscribers to the Texas Workers’ Compensation system are protected from claims of negligence brought by their injured employees. This is generally called “exclusive remedy.”
However, if the employee dies as a result of their work related injury, the employer may not be totally protected. The Texas Labor Code §408.001 allows for the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer's gross negligence.
Gross negligence is an act or omission “which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others. What lifts ordinary negligence into gross negligence is the mental attitude of the defendant . . . The plaintiff must show that the defendant was consciously, i.e., knowingly, indifferent to his rights, welfare and safety.
If you have a loved one who was killed as the result of an on the job accident or died as the result of complications from that accident, make sure that you have the claim reviewed by an attorney who understands not only the Texas Workers’ Compensation system, but also liability claims.