
Opinion issued August 27, 2009









 





In The
Court of Appeals
For The
First District of Texas



NO. 01-08-00905-CV



LANDON JONES AND LOREN JONES, Appellants

V.

CITY OF HOUSTON, Appellee



On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2004-72870



O P I N I O N
	Appellants, Landon and Loren Jones (the "Jones siblings"), challenge the trial
court's rendition of summary judgment in favor of appellee, the City of Houston ("the
City"), on their bystander claims for the wrongful death of their brother.  In their sole
issue, the Jones siblings contend that the trial court erred in granting summary
judgment in favor of the City.
	We affirm.
Factual and Procedural Background
	In the plaintiffs' second amended petition, the Jones siblings alleged that on
June 25, 2004, Logan Jones, their thirteen-year-old brother, drowned when he was
sucked into and trapped underwater in a culvert owned and maintained by the City. 
After spending over an hour waiting by the culvert for rescue teams to find their
brother, the Jones siblings saw Logan's body float out of a culvert several blocks
north of the culvert.  After seeing Logan's injuries and that he had died, the Jones
siblings "began to experience extreme nervousness, anxiety, depression, mental
anguish, distractibility, and difficulty sleeping," and they sought recovery for these
damages as bystanders.  The Jones siblings based their bystander claims for wrongful
death on the City's gross negligence in creating and maintaining the culvert.
	The City, in its motion for summary judgment, contended that the Jones
siblings were not entitled to recover for their emotional trauma and mental anguish
as bystanders.  The city attached to its motion, as summary judgment evidence, the
depositions of the Jones siblings.  
	In her deposition, Logan's sister, Loren, testified that on the morning that
Logan died, she was at home with her mother and a City fire department
representative called her home and spoke to her mother.  After the telephone call,
Loren saw her mother on the floor crying.  When Loren asked what had happened,
her mother told her that Logan had been sucked into a drainage ditch and he could not
be found.  Loren then called her brother, Landon, and told him to come home "right
away."  When Logan arrived, the three of them went to the culvert, and Loren saw
that "[f]ire trucks were everywhere" and that City police officers were trying to keep
everyone away from the culvert.  After a short time, a City diver arrived, and
"someone" told Loren that Logan "might be stuck in an air pocket and holding on." 
However the diver's attempts to locate Logan were unsuccessful.
	Loren further testified that after about an hour, she saw Logan's body float "out
into the bayou" and he was facedown in the water and not moving.  Loren's brother,
Landon, turned her around so that she could not see Logan's body, but she glimpsed
rescue workers trying to resuscitate him.  She eventually saw the rescue workers take
Logan away in an ambulance.  Although Logan had been in the culvert for over an
hour, Loren believed he was alive.
	In his deposition, Landon testified that after receiving the telephone call from
Loren, he drove to his parents' house, picked up his mother and Loren, and drove to
the culvert.  At the culvert, a City police officer told Landon that they had not been
able to find Logan yet.  Subsequently, a City diver arrived and began climbing down
into different manholes around the culvert with a flashlight.  "[W]ell over an hour"
after Landon arrived at the culvert, his brother "floated out of the drain."  Landon saw
that his brother was facedown and not moving.  Landon then heard his sister scream
and saw her collapse.  He steadied his sister and held his mother to keep her from
going over to see the body.  Landon saw rescue workers trying to resuscitate his
brother, and then they placed him into an ambulance.  Landon noticed that his
brother's skin looked pale.
	Based on the deposition testimony of the Jones siblings, the City argued that
they were not "bystanders" because they were told about the accident when they were
at their parents' house.  The City asserted that it was clear that Logan had drowned
some time before they arrived at the scene.  The trial court granted the City's motion
for summary judgment as to the bystander claims of the Jones siblings.
Bystander Claims
	In their sole issue, the Jones siblings argue that the trial court erred in granting
the City summary judgment because the City's summary judgment evidence did not
establish, as a matter of law, that they cannot recover damages as bystanders.  The
City argues that the Jones siblings are not entitled to recover as bystanders because
they did not have "a contemporaneous perception of the accident," nor were they in
the vicinity of the accident when it occurred. 
	To prevail on a summary judgment motion, a movant has the burden of proving
that it is entitled to judgment as a matter of law and that there is no genuine issue of
material fact. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.
1995).  A defendant moving for summary judgment must either (1) disprove at least
one essential element of the plaintiff's cause of action or (2) plead and conclusively
establish each essential element of its affirmative defense, thereby defeating the
plaintiff's cause of action.  Cathey, 900 S.W.2d at 341; Yazdchi v. Bank One, Tex.,
N.A., 177 S.W.3d 399, 404 (Tex. App.--Houston [1st Dist.] 2005, pet. denied).  
	Historically, Texas courts have been reluctant to allow recovery for negligently
inflicted mental anguish because it is difficult to predict or verify such injuries. 
Accordingly, they have limited a plaintiff's ability to recover in various ways. 
Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 n.6 (Tex. 1998); see
Kaufman v. Miller, 414 S.W.2d 164, 168-71 (Tex. 1967) (recognizing that plaintiff
may not recover "as a result of an injury or threatened injury to a third person" when
plaintiff was "unusually or peculiarly susceptible to emotional trauma and that fact
is unknown to the negligent tortfeasor"); Houston Elec. Co. v. Dorsett, 194 S.W.2d
546, 548 (Tex. 1946) (limiting recovery to plaintiffs who are physically injured and
in "the zone of danger"); Hill v. Kimball, 17 Tex. 210, 210, 13 S.W. 59, 59 (1890)
(allowing recovery if plaintiff suffered "a physical personal injury . . . produced
through a strong emotion of the mind").  In Freeman v. City of Pasadena, the Texas
Supreme Court set a clear and uniform limitation on bystander recovery for mental
anguish by adopting the three-factor bystander recovery test.  744 S.W.2d 923,
923-24 (Tex. 1988) (citing Dillon v. Legg, 441 P.2d 912, 920 (Cal. 1968)).  
	The three-factor bystander recovery test limits recovery of damages for mental
harm as a bystander to plaintiffs who establish three elements.  United Servs. Auto.
Ass'n v. Keith, 970 S.W.2d 540, 542 (Tex. 1998) (per curiam) (emphasis added); see
Freeman, 744 S.W.2d at 923-24; see also Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 47 (Tentative Draft No. 5, 2007)
(titled "Negligent Infliction Of Emotional Disturbance Resulting From Bodily Harm
To A Third Person").  First, the plaintiff must show that he was "located near the
scene of the accident, as contrasted with one who was a distance away from it." 
Keith, 970 S.W.2d at 542.  Second, the plaintiff must show that he "suffered shock
as a result of a direct emotional impact upon the plaintiff from a sensory and
contemporaneous observance of the accident, as contrasted with learning of the
accident from others after its occurrence."  Id. (emphasis added); see Freeman, 744
S.W.2d at 924 (reasoning that plaintiff could not recover as bystander because he "did
not contemporaneously perceive the accident or otherwise experience the shock of
unwittingly coming upon the accident scene"); see also Restatement (Third) of
Torts: Liability for Physical and Emotional Harm § 47 cmt. d.  Third, the
plaintiff must show that he and the victim "were closely related, as contrasted with
an absence of any relationship or the presence of only a distant relationship."  Keith,
970 S.W.2d at 542; see also Restatement (Third) of Torts: Liability for
Physical and Emotional Harm § 47 cmt. e.  When the material facts are
undisputed, the question of whether a plaintiff is entitled to recover as a bystander is
a question of law.  Keith, 970 S.W.2d at 542.  Nevertheless, the bystander elements
are "flexible" and should be evaluated on a case-by-case basis.  Id.
	In support of their argument that they are entitled to compensation for their
damages as bystanders, the Jones siblings rely on four cases: Lehmann v. Wieghat,
917 S.W.2d 379 (Tex. App.--Houston [14th Dist.] 1996, writ denied); City of Austin
v. Davis, 693 S.W.2d 31 (Tex. App.--Austin 1985, writ denied); Landreth v. Reed,
570 S.W.2d 486 (Tex. App.--Texarkana 1978, no writ); and Thornton v. Home Depot
U.S.A., Inc., No. A-04-CA-1039 AWA, 2006 WL 2022920 (W.D. Tex. July 17, 2006)
(not published).  They assert that in these four cases, as in the instant case, "the injury
producing events took some time to unfold," and, in such circumstances, these cases
"clearly establish that family members who learn of such a situation before reaching
the scene, and are present as the events unfold and the injury is ultimately realized,
can qualify as bystanders under Texas law."  However, the cited cases do not
establish that the Jones siblings qualify as bystanders under Texas law, and,
furthermore, none of the four cases are binding on this Court.
	In Landreth, the Texarkana Court of Appeals concluded that a jury's award of
damages to a plaintiff as a bystander to her sister's drowning was supported by the
evidence.  Landreth, 570 S.W.2d at 490.  The court reasoned that "actual observance
of the accident is not required if there is otherwise an experiential perception of it, as
distinguished from a learning of it from others after its occurrence."  Id. (emphasis
added).  The court recognized that "the evidence [was] uncertain as to whether [the
plaintiff] saw [her sister] in the pool," but the evidence supported a conclusion by the
jury that "only a few minutes elapsed between [her sister's] entry into the pool and
her discovery and the resulting resuscitative efforts."  Id. at 489-90.  The court
reasoned that such a situation "is far different from the case where one seeks damages
for his grief or agony at merely seeing the dead body of a loved one."  Id. at 490. 
Here, the evidence is undisputed that the Jones siblings did not see their brother
drowning in the water, and, unlike the plaintiff in Landreth, the Jones siblings saw
their brother's body surface after they had been waiting at the culvert for at least one
hour, not minutes after he had entered the water.  Additionally, the Jones siblings
were not present at the culvert when the accident occurred, as was the plaintiff in
Landreth, nor did they unwittingly come upon the accident scene. 
	In Davis, the plaintiff was not present when the accident occurred.  Davis, 693
S.W.2d at 33.  The plaintiff arrived at a hospital to visit his son, who had suffered
severe neurological damage, but his son's room was empty.  Id. at 32.  In the ensuing
search of the hospital, the plaintiff, accompanied by a hospital security officer, found
his son's body at the base of a ten-story air shaft.  Id. at 33.  Although the plaintiff
"was not at the foot of the airshaft at the moment his son fell," the Austin Court of
Appeals reasoned that he had a contemporaneous perception of the accident because
he "did not learn of the incident from others."  Id. at 34; see Freeman, 744 S.W.2d at
924 (reasoning that plaintiff was not a bystander because he did not "experience the
shock of unwittingly coming upon the accident scene").  Here, the Jones siblings
went to the culvert after they had learned of their brother's accident.  Unlike the
plaintiff in Davis, they did not unwittingly come upon the accident scene.
	In Lehmann, the Fourteenth Court of Appeals determined that a trial court had
not erred in submitting a question to a jury on whether a plaintiff had a "sensory and
contemporary perception" of the accident.  917 S.W.2d at 383.  The court reasoned
that because "the facts were disputed" as to whether the plaintiff perceived the
accident or learned "of the accident from others after its occurrence," that question
could be submitted to the jury.  Id.  Here, however, the evidence is undisputed that
the Jones siblings learned of the accident from others before going to the culvert.  See
Keith, 970 S.W.2d at 542 ("But, when the material facts are undisputed, as they are
here, whether the plaintiff is entitled to recover as a bystander is a question of law."). 
	Finally, the Jones siblings rely on Thornton as a "well-reasoned opinion" that
"discusses application of Texas bystander law involving such ongoing events, in
contrast to instantaneous injuries."  See Thornton, 2006 WL 2022920.  In Thornton,
the plaintiff saw a fire from a distance but did not know that her house was on fire or
that her sister was trapped inside the house.  Id. at *3.  Only after she arrived at her
house and saw the fire did her father tell her that her sister was trapped inside the
burning house.  Id. at *3.  However, unlike the Jones siblings, the plaintiff in
Thornton had not learned of the accident from others.  Id.  Here, the Jones siblings
learned about the accident from others and then chose to travel to the culvert. In
doing so, they did not "experience the shock of unwittingly coming upon the accident
scene."  See Freeman, 744 S.W.2d at 924.
	Moreover, even if the cases cited by the Jones siblings supported their
argument, we are bound by Keith.  In Keith, the Texas Supreme Court denied a
plaintiff's bystander claim, in a case with similar facts, concluding that the plaintiff
did not establish that she had a contemporaneous perception of the accident.  970
S.W.2d at 540-42.  The Court reasoned that:
	The emotional impact that [the plaintiff] undoubtedly suffered did not
result from a sensory and contemporaneous observance of the accident. 
In this regard, [the plaintiff] is in the same position as any other close
relative who sees and experiences the immediate aftermath of a serious
injury to a loved one. . . .  The fact that [the plaintiff] arrived on the
scene while rescue operations were underway and witnessed her
daughter's pain and suffering at the site of the accident rather than at the
hospital or some other location does not affect the analysis.
Id. at 542.  In Keith, the plaintiff was asleep in her house when her daughter was
injured in a car accident.  Id. at 541.  When a neighbor told the plaintiff that
something had happened to her daughter, she rushed to the scene of the accident
where she saw the wrecked car and heard her daughter in the wreckage making "scary
noises and crying out."  Id.  The plaintiff accompanied her daughter, by ambulance,
to the hospital, where her daughter died.  Id. 
	Although the Jones siblings do not cite or discuss Keith, they do argue that
"cases involving automobile accidents and analogous  instantaneous occurrences" are
distinguishable from the circumstances in this case because here, "the injury
producing events took some time to unfold."  However, we discern no analytically
significant difference between the car accident in Keith and the drowning in this case. 
In Keith, the plaintiff did not see the car accident but later went to the scene of the
collision and saw her daughter taken out of the wreckage and transported to the
hospital where she died.  Id.  Similarly, here, the Jones siblings did not see their
brother drown, but they did go to the scene where they saw his body taken out of the
water and transported to the hospital.  In both cases, a family member was informed
of an accident, went to the scene, and saw the effect of the accident.  See id. Keith
controls our holding.
	Accordingly, we hold that the City's summary judgment evidence established
as a matter of law that the Jones siblings could not recover as bystanders for any
mental anguish and emotional trauma caused by their brother's drowning.  Thus, we
further hold that the trial court did not err in granting the City summary judgment on
the bystander claims of the Jones siblings.
	We overrule the Jones siblings' sole issue.



 



Conclusion
	We affirm the judgment of the trial court.

 
 
							Terry Jennings
							Justice

Panel consists of Justices Jennings, Alcala, and Higley.

Justice Alcala, dissenting.

