
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



DISSENTING OPINION
	This case concerns the bystander claims filed by the siblings of a 13-year-old
child, Logan Jones, who died as a result of drowning in a City of Houston culvert that
did not have a protection grate to block the culvert.  For two reasons, I respectfully
dissent from the majority opinion's rejection of the claims.  First, contrary to the
applicable law for review of summary judgments, the majority opinion fails to view
the evidence in a light most favorable to the non-movant plaintiffs, the appellants,
Landon and Loren Jones.  Second, the majority opinion misapplies the precedent of
the Texas Supreme Court and Texas intermediate courts.  Because the record includes
some evidence that the event was ongoing when the Jones siblings were present at the
culvert, I would reverse the summary judgment and remand for trial.
The Evidence
	Loren learned from a telephone call that her brother Logan "was sucked into
a drainage ditch and they could not find him."  Lauren called Landon, the brother of
Loren and Logan, who quickly returned to the house.  Landon, Loren, and their
mother then went to the nearby culvert.  There, Loren learned that rescue workers
"were looking for him" and that Logan "might be stuck in an air pocket" holding on. 
Landon watched a diver search for Logan for 30 minutes, going into several
manholes, until Logan floated into the bayou.  Although Logan had been in the
culvert for about one hour when he appeared, rescue workers performed Cardio
Pulmonary Resuscitation (CPR) on Logan "trying to resuscitate him," and Landon
believed that those efforts might allow Logan to survive.
	Houston Police Department dive team officer Mark Janson received the call for
assistance.  Janson believed "there was a possibility of a rescue."  Janson explained
that when he arrived at the culvert, he hoped Logan "could be in an air pocket up in
the streets."  As he searched for Logan, Janson was "very, very focused on trying to
locate [Logan's] body, locate him hopefully alive."  When Logan was found, Janson
believed it was a "possible live recovery" and he was "hopeful that [Logan] was
going to make it."  In hindsight, Janson changed his opinion to a belief that Logan
"was expired before [Janson] ever arrived at that scene."  
	The majority opinion erroneously sees the evidence in a light favorable to the
movant, the City, by contending there is no dispute Logan died before the siblings
arrived.   But there is a dispute.  Although the diver said that in hindsight he believed
Logan was deceased before the diver arrived, the diver acknowledged that his state
of mind was different during the events.  The diver testified that at the time of the
events, he conducted a rescue search for a live person under the belief that Logan
could have survived by finding an air pocket under the street and that CPR was
conducted on Logan to try to resuscitate him.  If the evidence was "undisputed" that
Logan was deceased when his siblings arrived, as the majority contends, then the
evidence would conclusively show that the diver was conducting a recovery mission
to seize the body of Logan and no CPR would have been conducted on the deceased
body.  The evidence shows a dispute whether Logan was alive at the time the siblings
arrived at the culvert, and, therefore, a dispute exists whether the siblings observed
the drowning or merely its aftermath.  That is the type of dispute that must be
resolved by a jury.  See Lehmann v. Wieghat, 917 S.W.2d 379, 383 (Tex.
App.--Houston [14th Dist.] 1996, writ denied) (holding proper to submit to jury
question of fact concerning whether plaintiff perceived  accident or learned "of the
accident from others after its occurrence").  Viewing the evidence and all reasonable
inferences from the evidence in a light most favorable to the non-movant, as required,
there is a genuine issue of material fact that the event was ongoing while Landon and
Loren were present at the culvert.  See Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900
S.W.2d 339, 341 (Tex. 1995).  
The Law
	The majority opinion acknowledges that three intermediate courts and one
federal district court have issued decisions contrary to its holding.  See Lehmann, 917
S.W.2d at 383 (holding proper to submit bystander claim as question of fact to jury
when evidence showed bystander did not see shooting, bystander was about one-half
mile to mile away when victim was shot, shooter told bystander about having shot
victim, and bystander then saw victim lying unconscious in bed of truck); City of
Austin v. Davis, 693 S.W.2d 31, 32-33 (Tex. App.--Austin 1985, writ denied)
(upholding bystander claim even though father did not see son's actual fall when
evidence showed father arrived at hospital to visit son, found son's room empty,
searched hospital, and found son's body at base of air shaft); Landreth v. Reed, 570
S.W.2d 486, 490 (Tex. App.--Texarkana 1978, no writ) (upholding bystander claim
even though bystander did not see victim's entry into pool because "jury could have
inferred from other evidence that only a few minutes elapsed between [victim's] entry
into the pool and her discovery and the resulting resuscitative efforts"); Thornton v.
Home Depot U.S.A., Inc., No. A-04-CA-1039 AWA, 2006 WL 2022920 (W.D. Tex.
July 17, 2006) (unpublished order) (upholding bystander claim when bystander did
not see fire actually harm her sister but saw fire and heard from others her sister was
trapped inside burning house).  The majority opinion, however, attempts to
distinguish these decisions by claiming Logan was undisputedly deceased when the
siblings got to the culvert, which I have addressed in the preceding section, and by
asserting (A) the siblings did not "unwittingly" come upon the event and (B) the
Keith decision compels the result. (1) 
 A.  	The Plaintiff Need Not Be "Unwitting"
 To support its position that the plaintiff must "unwittingly" come upon the
accident scene, the majority opinion cites to Freeman v. City of Pasadena, 744
S.W.2d 923, 924 (Tex. 1988), which states, "In our case it is undisputed that Freeman
did not contemporaneously perceive the accident or otherwise experience the shock
of unwittingly coming upon the accident scene."  By its phrasing, the supreme court
in Freeman articulated two alternatives.  In one alternative, the bystander can recover
if he contemporaneously perceives the accident.  In the second alternative, the
bystander can recover if he experiences the shock of "unwittingly" coming upon the
accident scene.  It is the first alternative that applies here.  The siblings
contemporaneously perceived the events in that they were present at the culvert while
a diver conducted a search for a live person and when CPR was performed to
resuscitate Logan after he surfaced.  
          The majority opinion creates a new rule disallowing a bystander claim in every
instance in which the plaintiff knows about the existence of an event before seeing
the event.  This means that when family members learn of a loved one in danger, they
automatically forego any right to recover as a bystander if they opt to assist their
loved one while their loved one is facing danger.  That, of course, was not the
intention of Freeman, which recognizes that even if a bystander knowingly
encounters the event, the bystander may pursue his claim if he contemporaneously
perceives the occurrence.  See id.  
	B.  	The Keith Decision Does Not Compel the Result
	It appears the primary reason the majority opinion holds in favor of the City is
a faulty reliance on a distinguishable decision by the Texas Supreme Court. See
United Servs. Auto Ass'n  v. Keith, 970 S.W.2d 540, 542 (Tex. 1998) (per curiam). 
In Keith, Keith arrived at the scene of her daughter's auto collision, where she saw
the wreckage and heard her daughter making "scary noises and crying out."  Id. at
541.  The court determined Keith could not recover as a bystander because she did
not have a "sensory and contemporaneous observance of the accident."  Id. at 542. 
The court explained that Keith "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."  Id. 
The court stated that the "fact that Dianna Keith 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.   The court explained that "Texas law still requires the bystander's
presence when the injury occurred and the contemporaneous perception of the
accident."  Id.
	Unlike Keith,

		the Jones siblings watched the ongoing event as the divers
searched for Logan, who the diver and the siblings
believed could be alive in an air pocket as he was trapped
in the culvert; and

 

		the Jones siblings were not watching the immediate
aftermath of a serious injury to a loved one but were
instead watching to see whether the loved one would
escape injury in the ongoing event of the occurrence.


	 Courts have uniformly held that a loved one need not actually see the deceased
take his last breath if there is an "experiential perception" of it.  See Davis, 693
S.W.2d at 32-33; Landreth, 570 S.W.2d at 490; Thornton, 2006 WL 2022920 at *3. 
Like Landreth, the siblings were "brought so close to the reality of the accident as to
render [their] experience an integral part of it."  Landreth, 570 S.W.2d at 490. 
	The majority opinion takes too narrow a view of "contemporaneous observance
of accident" by confining it to events that occur in a split second, like car collisions. 
Instead, when the event does not occur in a split second, courts have applied a
broader view of "contemporaneous observance of accident" to include the beginning
of the event, as well as the ongoing event, such as the search for a lost child, a fire,
or a drowning.  Because the reasonable inference of the evidence in a light favorable
to the non-movant shows that the siblings were present when Logan drowned, I
respectfully dissent to the majority's affirmance of the trial court's summary
judgment, which precluded a jury trial in this case.
Conclusion
	I would reverse the summary judgment and remand for trial.

 
 
							Elsa Alcala
							Justice

Panel consists of Justices Jennings, Alcala, and Higley.

Justice Alcala, dissenting.

1.  United Servs. Auto Ass'n  v. Keith, 970 S.W.2d 540, 542 (Tex. 1998) (per curiam).
