Proving Bystander Recovery in a Personal Injury Claim
When a person is injured or killed as a result of the negligence of another, a close relative may have witnessed the event in some way. That person who witnessed the heinous event may have suffered serious injuries as well. Bystander damages in accidents are recoverable under the law for those in this situation. Texas law limits who and how such bystander claims can be made. Call a Dallas auto accident injury attorney to discuss your case and see what claims you might be able to make. The Law Office of Doug Goyen can be reached at (972) 599 4100.
When a person witnesses a close family member get severely injured or killed they may be able to recover “bystander damages” in Texas. Cases where someone witnesses an injury and the event they witness involves emotional shock, emotional and mental trauma, or anguish as a result of witnessing or experiencing an experiential perception of the incident in which a loved one was injured or killed qualify for bystander damages.
Bystander damages are recoverable if the emotional shock injury was from conduct that from a reasonable person’s standpoint could have been a foreseen result of that negligent conduct. There is no requirement for the person making the bystander claim to have suffered a physical injury. Typically, family members who witnessed another family member as they were injured or killed are the only ones who are allowed to recover in Texas. St. Elizabeth Hospital v Garrard, 730 S.W.2d 649 (Tex. 1987).
Texas courts decide on whether a person qualifies to recover for bystander damages based on the following issues:
- Whether or not the Plaintiff was present at the time of the accident (close proximity).
- If the shock was caused by a direct emotional impact from a sensory and immediate perception of the accident (experiential perception).
- Whether or not the Plaintiff and victim were related.
A typical bystander case occurs when someone witnesses a loved one being killed or seriously injured as a result of someone else’s negligence. The person who witnessed the injury or death may file a claim for the traumatic emotional harm done to them.
1) A vehicle defect caused the back door of a vehicle to open on the highway causing an 18 month old to fall out of the vehicle and be run over by another vehicle. The mother witnessed her son as he was run over by the vehicle and was with her son on the way to hospital when he died. The mother had traumatic depressive reaction due to what she witnessed. The court allowed recovery for bystander damages. Dave Snelling Lincoln-Mercury v. Simon, 508 S.W.2d 923 (Tex.Civ.App—Houston [1st Dist] 1974, no writ).
2) A fourteen month old girl fell into the swimming pool at her day nursery and drowned. Her sister who was also at the nursery witnessed unsuccessful attempts to resuscitate and save her sister who had drowned. Afterwards she suffered mental anguish than manifested difficulty sleeping, weight loss, hyper-activity, distractibility, and extreme nervousness due to mental trauma from what she had witnessed. Courts in Texas allowed recovery of bystander damages in this situation. Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ.App—Texarkana 1978, no writ).
3) Parents and their daughter were involved in an accident and their daughter ended up comatose for days, paralyzed, and brain damaged, among other injuries. The parents evidence showed they developed nervous stomach ulcers, general nervousness, difficulty sleeping, and an inability to concentrate due to the emotional trauma suffered from what they witnessed. Texas courts allowed the parents to recover for their emotional and mental damages in a claim for bystander damages. Covington v. Estate of Foster, 584 S.W.2d 726 (Tex.Civ.App—Waco 1979, writ ref’d n.r.e.).
4) A father was in his back yard, he heard a scream and thud. The father testified that he heard the car hit his son and that that he heard a loud scream from his 11 year old son. He then stated that a few seconds later he heard a loud thud “like a watermelon being dropped from a great height.” When he reached the scene of the accident he saw his son lying face down on the ground with his head near the curb. When he turned his son over he discovered that his son was bleeding profusely from a torn artery, that his lip was cut, that his face was covered with blood, and that he had other injuries. The father’s evidence showed he suffered depression, sleeplessness, and nervousness afterwards due to the mental trauma from the event. Texas courts allowed him to recover for bystander damages. Bedgood v. Madalin, 589 S.W.2d 797 (Tex.Civ.App.—Corpus Christi 1979), rev’d, 600 S.W.2d 773 (Tex. 1980).
5) A mother was driving her daughter to school and struck a steel cable that was hanging low across the highway. The cable was strung from the back of two concrete trucks positioned on opposite sides of the highway. The resulting injuries to the 11-year-old daughter rendered her a semicomatose quadriplegic. The mother saw blood & crushed glass on her child’s face following the auto accident impact. The mother could not see her daughter for 10 days following the accident due to the injuries the child suffered. The evidence produced showed that the mother had difficulty concentrating, had crying spells, suffered nightmares, sleeplessness, apathy, had no energy, and depressive neurosis, among other issues related to her mental trauma from what she witnessed. Texas courts allowed bystander damages in this situation. Apache Ready Mix Co v. Creed, 653 S.W.2d 79 (Tex.App—San Antonio 1983, no writ).
6) The City of Mission put on a fireworks display. The Genzer family came to watch the display. One of the fireworks exploded near the bed of the pickup where the family was watching. The grandparents and parents were seriously hurt in the explosion that killed the grandchild. Both grandparents witnessed the injuries suffered by the child seconds after the explosion, and the grandmother carried the child in her arms to the hospital. Additionally, it was undisputed that the grandparents shared a very close family relationship with the deceased child. Both parents of the deceased child were also victims of the explosion. The child’s mother was rendered unconscious by the explosion and did not view the child’s injuries but was apprised of them upon regaining consciousness. The father actually saw the injured child before she was taken up and rushed to aid by her grandmother. Grandparents were allowed to recover for bystander damages. Genzer v. City of Mission, 666 S.W.2d 116 (Tex.Civ.App.—Corpus Christi 1983, writ ref’d n.r.e.).
7) The son had suffered severe neurological damage resulting from head injuries sustained in a motor vehicle accident. Davis visited his son every day during his six-week hospitalization. At the time of the son’s death he was ambulatory, but was confused and disoriented. He was in danger of injuring himself and others because of his poor judgment and perception due to his injuries. For this reason, he was always either medicated or physically restrained. On the day of Kenny’s death, the hospital staff failed to do either. When Davis arrived at the hospital for his daily visit, his son was not in his room and the ward staff was unable to locate him, although they were then searching the hospital and surrounding grounds. Davis joined the search, which continued for three hours and included not only the hospital and grounds, but also surrounding parks and recreational areas. In his second search of the hospital basement, Davis, accompanied by a hospital security officer, found his son’s body at the base of a ten-story air shaft. He had fallen down airshaft and died. Father was intensely involved in search for son while he was missing. Father had emotional distress. The City of Austin argued that Davis was not present at the time his son fell to his death, so he therefore did not experience a contemporaneous perception of the incident. The court disagreed, stating that when a person is brought so close to the reality of the accident as to render their experience an integral part of it, in that situation actual observance is unnecessary to recover bystander damages. City of Austin v. Davis, 693 S.W.2d 31 (Tex.Civ.App—Austin 1985, writ ref’d n.r.e.).
8) A man’s widow and sons were present and witnessed the police shoot the man down in his truck when an officer mistook him for a fugitive. Physical manifestations of mental trauma did not need to be proved in order to recover for mental anguish under a bystander claim. Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985).
9) An uncle who rescued his nephew from a burning apartment was entitled to recover as bystander only after he proved he was “closely related”. Garcia v. San Antonio Hous. Auth., 859 S.W.2d 78 (Tex.App.—San Antonio 1993, no writ).
1) A husband and wife were in the car with their two kids. The husband was killed in an auto accident. The wife and kids were injured and all three rendered unconscious, one child regained consciousness but did not actually see death or injury to the father and husband. No award was allowed for bystander recovery because the wife and children did not actually witness the injury and death of the husband. Dawson v. Garcia, 666 S.W.2d 254 (Tex.Civ.App.—Dallas 1984, no writ).
2) A grandmother was not allowed to recover bystander damages 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) A mother was not allowed bystander recovery for medical malpractice that caused death of her fetus. Edinburg Hosp Auth v. Trevino, 941 S.W.2d 76 (Tex.App.—Corpus Christi 1997, no writ).
4) No bystander recovery was allowed for witnessing death of co-worker, as there was no close family relationship. Kiffe v. Neches-Gulf Marine, Inc., 709 F.Supp. 743 (E.D. Tex. 1989).
I often receive calls where someone witnessed the 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”.
If you are looking for a personal injury attorney, call (972) 599 4100. We offer free phone consultations. We also provide a free strategy session. The strategy session includes a summary of your case, legal issues involved, and legal issues we identify as being critical to maximizing the compensation owed.THERE IS NO FEE IF WE DO NOT WIN
You owe us nothing if we are unable to recover. We charge a contingency fee structured to take a percentage of what we recover. As a performance-based contract, the better we do for you, the better we do for ourselves. This aligns our interests in the case with our client’s interests.DIRECTIONS TO OUR OFFICE
Law Office of Doug Goyen
15851 Dallas Pkwy #605
Addison, Texas 75001
(972) 599 4100 phone
(972) 398 2629 fax
Directions to our office: We are on the southbound side of the service road to the Tollway. Stay on the Dallas North Tollway until you come to the Keller Springs exit. Take the Keller Spring exit. Stay on the service road on the southbound side and go just past Keller Springs. Our office is the 2nd building south of Keller Springs, located on the service road to the North Dallas Tollway in the Madison Business Center on the 6th floor.
By Doug Goyen, email@example.com
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