A family member died at work in Texas. Can we sue the employer?

Texas leads the nation in workplace deaths

In 2024, 557 people died from work injuries in Texas, more than in any other state. Hispanic and Latino workers were 45% of those deaths. Behind every one of those numbers is a family trying to understand what happened and what comes next.

The answer depends on workers' compensation

If the employer carries workers' comp: workers' comp is generally the exclusive remedy against the employer, and the family receives death and burial benefits through it. But Texas law makes an important exception. When the death was caused by the employer's gross negligence or an intentional act, the surviving spouse and the worker's children can sue the employer for exemplary, or punitive, damages. Gross negligence means the employer knew about an extreme risk and went ahead anyway, with conscious indifference to the safety of the people involved.

If the employer has no workers' comp: the family can bring a full wrongful death claim against the employer for negligence. A non-subscribing employer loses the defenses of contributory negligence, assumption of the risk and a coworker's negligence.

What gross negligence means, and how it is proven

Under Texas law, gross negligence has two parts: viewed objectively, the conduct involved an extreme risk of serious harm, and the company actually knew about the risk but went ahead with conscious indifference to people's safety. It must be proven by clear and convincing evidence. In real cases, that proof often comes from ignored warnings and earlier incidents, disabled alarms or safety devices, repeated OSHA citations, production pressure documented in emails, and internal reports that predicted what happened.

Workers' comp death benefits

When the employer carries workers' comp, eligible family members, usually the spouse and children, can receive weekly death benefits, and the family can receive burial benefits. A claim for death benefits must be filed within one year of the death. Those benefits are separate from, and do not prevent, a claim against other responsible companies or a gross negligence claim against the employer.

Other companies can be responsible too

Many workplace deaths involve companies other than the employer: the plant or property owner, a general contractor, another subcontractor, a trucking company or an equipment manufacturer. Claims against them are not limited by workers' comp. Under the Texas Wrongful Death Act, the spouse, children and parents can recover for the loss of support, care, companionship and their own grief, and the estate can recover for what the worker suffered and for funeral expenses.

Families who are undocumented or live abroad

The law does not require the family to have papers or to live in the United States. A spouse in Mexico or children in Honduras can be part of the claim. How families abroad prove the relationship and bring a loved one home.

How these cases unfold

The company's investigation starts the same day, often with its lawyers and insurers involved. OSHA may inspect, and it has six months from a violation to issue citations. Federal investigations by the Chemical Safety Board can take years, and you don't have to wait for them. In the first weeks, our job is to send preservation demands so records, data and equipment are not lost, identify every company involved, and get you the medical care the claim depends on. Then come the experts, such as process-safety engineers, safety consultants, doctors and economists, followed by negotiations or a lawsuit. Many workplace cases resolve in one to three years; the most serious ones can take longer.

The investigation starts without you

After a death at work, OSHA usually investigates, and the employer and its insurers start their own investigation immediately. Families have a right to their own answers. Most wrongful death claims must be filed within two years of the death, but evidence disappears much sooner. You don't have to deal with the company or its insurers on your own. Jimmy Suerken is a Mexican-American attorney who speaks Spanish, and you can talk with him directly. When a case calls for it, he brings in experienced co-counsel and the right experts.

More answers about industrial and plant accidents

Other ways people ask this

Can we sue my husband's employer if it has workers' comp?

Only in limited cases. When the employer's gross negligence or intentional act caused the death, the surviving spouse and children can sue for punitive damages. Other companies involved can be sued without that limit.

Can the parents of a worker who died sue the employer?

In a workers' comp case, the punitive damages exception is for the surviving spouse and the worker's children. Parents can be part of wrongful death claims against other responsible companies, or against an employer without workers' comp.

Does OSHA's investigation decide our case?

No. OSHA's job is enforcing safety rules. Its records can help, but your family's claim needs its own investigation.

How long do we have to file?

Most Texas wrongful death claims must be filed within two years of the death. Some deadlines are shorter, so it is important to act early.

What does workers' comp pay when a worker dies?

Eligible family members, usually the spouse and children, can receive weekly death benefits, and the family can receive burial benefits. The claim must be filed within one year of the death.

Can our family see OSHA's findings?

OSHA inspection information is public through OSHA's online establishment search, and more of the file can be requested once the case is closed. We gather it as part of the investigation.

What is gross negligence?

Conduct involving an extreme risk of serious harm, where the company actually knew of the risk and went ahead with conscious indifference to people's safety. It must be proven by clear and convincing evidence.

Authority: Tex. Lab. Code § 408.001 · Tex. Lab. Code ch. 406 · Tex. Civ. Prac. & Rem. Code ch. 71 · BLS: fatal work injuries in Texas, 2024 · TDI: 2024 Texas work fatalities · Tex. Civ. Prac. & Rem. Code ch. 41 · Tex. Lab. Code ch. 409