Bystander Recovery

Bystander Recovery:

When a person has been injured or killed by another’s negligence, a closely related person may have witnessed the event in some way.  That person who witnessed the horrific event may have their own serious injuries.  The law allows a person in this situation to make a “bystander” claim, to recover for their injuries.  Texas law is restrictive on who and how such bystander claims may be made.  Call to discuss your case with a Dallas injury lawyer to determine what claims you may be able to make.  Call the Law Office of Doug Goyen at (972) 599 4100.
 
   photo Truckaccidentlawyer_zpsb2e0d185.jpg

Bystander Recovery Cases: 
Cases involving emotional shock, emotional and mental trauma, or anguish by reason of witnessing or having an experiential perception of an incident in which a loved one is injured or killed.  These are recoverable if the injury from the emotional shock were a forseeable consequence of the negligent conduct.   There is no requirement that there be a physical injury.   Usually the recovery is restricted to family members.  St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649 (Tex. 1987).
 
Determinations must be made on the following:
a.     Whether the Plaintiff was near the scene of the accident (close proximity).
b.    If shock was a result of a direct emotional impact from a sensory and contemporaneous perception of the accident (experiential perception.
c.    Whether the Plaintiff and victim were closely related or not.  
A typical bystander case is where someone actually witnesses a loved one who is killed or seriously hurt by someone else’s negligence.   The person who witnesses the injury or death may make a claim for the injury that was caused to them.
 
Texas Cases Addressing Bystander Claims:
    Allowed:  
1)    Mother witnessed son run over by a vehicle and was with him on way to hospital when he died.  Mother had traumatic depressive reaction.  Dave Snelling Lincoln-Mercury v. Simon, 508 S.W.2d 923 (Tex.Civ.App—Houston [1st Dist] 1974, no writ).  
2)    Sister witnessed unsuccessful attempts to resuscitate and save sister who had drowned at day nursery.  Difficulty sleeping, weight loss, hyper-activity, distractibility, and extreme nervousness.  Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ.App—Texarkana 1978, no writ).  
3)    Parents in same accident with daughter where daughter ended up comatose for days, paralyzed, brain damaged, etc.  Parents had nervous stomach ulcers, general nervousness, difficulty sleeping, inability to concentrate.  Covington v. Estate of Foster, 584 S.W.2d 726 (Tex.Civ.App—Waco 1979, writ ref’d n.r.e.).  
4)    Father was in back yard, heard a scream and thud, ran to front yard to find his fatally injured son who was struck by car.  Father had depression, sleeplessness, and nervousness.  Bedgood v. Madalin, 589 S.W.2d 797 (Tex.Civ.App.—Corpus Christi 1979), rev’d, 600 S.W.2d 773 (Tex. 1980).  
5)    Mother saw blood  & crushed glass on child’s face following an impact.  Could not see daughter for 10 days.  Mother had difficulty concentrating, crying, nightmares, sleeplessness, apathy, no energy, depressive neurosis, etc.  Apache Ready Mix Co v. Creed, 653 S.W.2d 79 (Tex.App—San Antonio 1983, no writ).  
6)    Grandparents and parents were seriously hurt in an explosion that killed grandchild.  They all observed injury to child.  Grandparents allowed to recover.  Genzer v. City of Mission, 666 S.W.2d 116 (Tex.Civ.App.—Corpus Christi 1983, writ ref’d n.r.e.).
7)    Son missing in mental hospital.  He had fallen down airshaft and died.  Father was intensely involved in search for son while he was missing.   Father had emotional distress, etc.  City of Austin v. Davis, 693 S.W.2d 31 (Tex.Civ.App—Austin 1985, writ ref’d n.r.e.).  
8)    Man’s widow and sons present and witnessed police shoot him down in truck when officer mistook him for a fugitive.  Physical manifestations did not need to be proved in order to recover for mental anguish.  Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985).  
9)    Uncle rescued nephew from burning apartment entitled to recover as bystander only after he proved “closely related”.  Garcia v. San Antonio Hous. Auth., 859 S.W.2d 78 (Tex.App.—San Antonio 1993, no writ). 
     NOT Allowed:
1)    Husband and wife in car with kids.  Husband killed in accident.  Wife and kids injured, but did not actually see death or injury to husband.  No award because wife and children did not actually witness death/injury.  Dawson v. Garcia, 666 S.W.2d 254 (Tex.Civ.App.—Dallas 1984, no writ).  
2)    Grandmother not allowed to recover because she did not give facts to show that her shock resulted from a direct emotional impact on her from observance of the incident.  Cavanaugh v. Jones, 863 S.W.2d 551 (Tex.App.—Austin 1993, writ denied).  
3)    Mother not allowed bystander recovery for medical malpractice that caused death of fetus.  Edinburg Hosp Auth v. Trevino, 941 S.W.2d 76 (Tex.App.—Corpus Christi 1997, no writ).
4)    No recovery allowed for witnessing death of co-worker.  Kiffe v. Neches-Gulf Marine, Inc., 709 F.Supp. 743 (E.D. Tex. 1989).  
I often receive calls where someone witnessed the horrific death or injury of someone they did not know.  This can also cause severe emotional trauma if you were in the vicinity, but unfortunately Texas law does not allow recovery in this situation.  The witness and victim must be “closely related”. 

Damages Often Recoverable in Personal Injury Cases Include the Following:

Past and future medical bills, past and future lost earning capacity, past and future lost income, past and future physical impairment, past and future disfigurement, past and future mental anguish, past and future pain and suffering, property damage, loss of use of your property - such as rental car bills, storage, total loss of property, diminished value of property, loss of body member (arm, leg, . . .), loss of body capacity (hearing, eyesight, . . . ), loss of consortium (spouse, parental, child/filial), loss of services, emotional/mental trauma (bystander injury), prenatal injury, exemplary damages, prejudgment interest, attorney's fees, and court costs.

If you need a Dallas injury lawyer, call the Law Office of Doug Goyen at (972) 599 4100.  We can discuss your case with you and determine what can be done.

Personal Injury Areas We Help With Are:

Auto Accident and Injury Cases, Personal Injury Cases, 18 Wheeler & Commercial Vehicle Injury Accident Cases, Motorcycle Accident and Injury Cases, Wrongful Death Cases, Pedestrian Injured by Automobile Cases, Slip and Fall & Premises Cases, Workplace & Constructions Injury Cases, Dog Bite Injury Cases, Bicyclers Hit by Automobile Cases .

Types of Coverage in Automobile Injury Cases:

Automobile Liability Insurance, Uninsured Motorist Insurance, Personal Injury Protection (PIP), Medpay Insurance, Property Damage & Collision Coverages for Your Auto

By Doug Goyen, douggoyen@gmail.com 

Facebook - Law Office of Doug Goyen

Google+