SW Legal studies in Business

Bystanders Must Witness Accident to Have Cause of Action for Emotional Distress
Description

Appeals court held that for bystanders to recover damages for emotional distress in a wrongful death case, they must be closely related to the deceased, they must have been at the scene of the accident, and they must have suffered a shock from observing the accident.

Topic Torts
Key Words

Wrongful Death; Bystanders; Emotional Distress; Damages

C A S E   S U M M A R Y
Facts

Logan, age 13, drowned when he was sucked into and trapped underwater in a culvert owned by the City of Houston. His siblings heard he was missing and went to stand by the rescue teams searching for their brother. After more than an hour, they saw his body float out of a culvert several blocks away. The rescue team attempted to revive him, but could not, and put him in an ambulance. The siblings experienced extreme nervousness, anxiety, depression and mental anguish. They sued the city for gross negligence in maintenance of the culvert based on their status as bystanders. The trial court granted the city summary judgment. The siblings appealed.

Decision

Affirmed. The bystander recovery test limits recovery of damages for mental harm as a bystander to plaintiffs who establish three elements: 1) the plaintiff must show that he was located near the scene of the accident; 2) the plaintiff must show that he suffered shock as a result of a direct emotional impact upon the plaintiff from a contemporaneous observance of the accident; and 3) the plaintiff must show that he and the victim were closely related. While the siblings were closely related, they were not bystanders. They did not observe Logan being swept into the culvert; they heard that it had happened. They witnessed the effect of the accident when his body came to the surface several blocks away an hour later. Hence, there can be no recovery.

Citation Jones v. City of Houston, ---000S.W.3d--- (2009 WL 2634226, Ct. App., Texas, 2009)

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