     Case: 12-31226       Document: 00512343454          Page: 1     Date Filed: 08/16/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                             FILED
                                                                           August 16, 2013

                                     No. 12-31226                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



PAULETTE MARIE DAMOND, individually and, on behalf of Shane
Damond; BRIDGET MARIE DAMOND AGUILLARD, individually and, on
behalf of Shane Damond; STEPHANIE DAMOND MALVEAUX,
individually and, on behalf of Shane Damond; JASON CHARLES DAMOND,
individually and, on behalf of Shane Damond; COREY JAMES DAMOND,
individually and, on behalf of Shane Damond; LAKISHA ANN DAMOND,
individually and, on behalf of Shane Damond; NICOLE M. DAMOND,
individually and, on behalf of Shane Damond,

                                                   Plaintiffs - Appellants
v.

JIM CRAFT; MICHAEL ANTHONY MILLAZO; LAFAYETTE CITY
PARISH CONSOLIDATED GOVERNMENT,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        for Western District of Louisiana
                             USDC No. 6:09-CV-01236


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*

       *
        Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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                                       No. 12-31226

       Seven siblings of decedent Shane Damond (“the Siblings”) appeal the
district court’s grant of summary judgment and dismissal of their claim under
Louisiana’s bystander recovery statute.1 Because the Siblings have not pled
facts sufficient to prove an essential element of their claim, we AFFIRM.
                                I. FACTUAL HISTORY
       Officer Michael Anthony Milazzo2 approached Shane Damond in a gas
station parking lot, suspecting him of operating a stolen vehicle. Although
Milazzo and certain eyewitnesses present conflicting accounts of the ensuing
interaction, it is undisputed that Milazzo fatally shot Damond.                       Shortly
thereafter, an ambulance transported Damond’s body to the hospital.
       None of the Siblings were at the gas station when Milazzo shot Damond,
but all of them learned that Damond may have been shot. Two of the Siblings
went to the scene, but when they arrived Damond’s body had already been
transported to the hospital. The Siblings proceeded to the hospital to get
further information, but the officer at the hospital and the chief of police, Jim
Craft, refused to tell the Siblings whether the individual who had been shot
was Damond. Consequently, none of the Siblings saw Damond’s body or knew
whether the deceased individual was, in fact, their brother until Damond’s body
was released to a funeral home nearly a week later.
       The Siblings sued for emotional distress under Louisiana’s bystander
recovery statute, LA. CIV. CODE ANN. art. 2315.6 (2010). The district court



       1
            The order from which this appeal was taken was entered in June of 2012. We
dismissed the original appeal from that order under Case No. 12-30704 because the June 2012
order left other parties in place and, therefore, was not a final order. Thereafter, on November
7, 2012, the district court disposed of the remaining parties such that the June 2012 order
became final. This timely appeal followed.
       2
         The parties differ in their spelling of Milazzo’s name. Because Milazzo is a defendant,
we adopt the Defendants’ spelling.

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                                 No. 12-31226

granted the Defendants’ motion for summary judgment and dismissed the
Siblings’ claims with prejudice. The Siblings appealed.
                       II. STANDARD OF REVIEW
      We review a grant of summary judgment de novo, applying the same
standard as the district court. Gen. Universal Sys., Inc. v. HAL, Inc., 500 F.3d
444, 448 (5th Cir. 2007). Summary judgment is appropriate if the moving
party can show that “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
Thus, summary judgment is proper “against a party who fails to make a
showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The evidence must be viewed
in the light most favorable to the non-moving party. United Fire & Cas. Co. v.
Hixson Bros., 453 F.3d 283, 285 (5th Cir. 2006).
                             III. DISCUSSION
      Louisiana’s bystander recovery statute allows certain family members,
including siblings, “who view an event causing injury to another person, or who
come upon the scene of the event soon thereafter, [to] recover damages for
mental anguish or emotional distress that they suffer as a result of the other
person’s injury.” LA. CIV. CODE ANN. art. 2315.6. This statute is “intended to
allow recovery of bystander damages to compensate for the immediate shock
of witnessing a traumatic event which caused the direct victim immediate
harm that is severe and apparent.” Trahan v. McManus, 728 So. 2d 1273, 1279
(La. 1999). It is not intended to “compensate for the anguish and distress that
normally accompany an injury to a loved one under all circumstances.” Id.
      To that end, a bystander seeking recovery under this statute must view
the injury-causing event or demonstrate a close temporal proximity between

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the occurrence of the event and the bystander’s arrival upon the scene. See id.
(explaining that “[t]he requirement of temporal proximity has always been at
the root of allowing recovery for emotional distress caused by an injury to
another”); see also Veroline v. Priority One EMS, 18 So. 3d 1273, 1275-76 (La.
2009) (providing that a claimant who did not view the injury-causing event
must “come upon the accident scene soon after it has occurred and before any
substantial change has taken place in the victim’s condition”). Importantly,
this statute provides the sole means of such recovery in Louisiana. See LA.
CIV. CODE ANN. art. 2315.6 (“Damages suffered as a result of mental anguish
or emotional distress for injury to another shall be recovered only in accordance
with this Article”); Trahan, 728 So. 2d at 1281.
      The Siblings do not claim that they witnessed the shooting. Instead,
relying on Louviere v. Louviere, 839 So. 2d 57, 73 (La. Ct. App. 2002), the
Siblings seek to satisfy the temporal proximity requirement based on the
anguish and uncertainty they experienced for nearly a week between the time
of the shooting and confirmation of Damond’s death. The court in Louviere
affirmed damages under Article 2315.6 to family members of hostages when
those family members had witnessed the hostage situation unfold from “mere
yards away.” Id. The Louviere plaintiffs experienced a deadly situation, in
real-time, and their emotional distress resulted from their experience at the
scene of an ongoing incident. See id. These circumstances fell within the ambit
of Article 2315.6 because the harm complained of arose from a
contemporaneous experience of “an event causing injury to another person.”
See id.
      Here, in contrast, the Siblings’ “prolonged anguish” caused by uncertainty
over Damond’s fate does not establish their physical, temporal proximity to
Damond’s shooting. Any decision not to release information about Damond’s

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                                      No. 12-31226

identity or status does not qualify as an “injury-causing event [of] which the
[Siblings were] contemporaneously aware [as having] caused harm to
[Damond].” See Trahan, 728 So. 2d at 1280. Although uncertainty as to their
brother’s condition no doubt caused the Siblings anguish and distress, they do
not allege emotional distress based on a contemporaneous observation of the
shooting, which is the legally relevant event (“as a result of the other person’s
[Damond’s] injury”) under the bystander statute.
       Finally, the Siblings contend that Milazzo’s shooting of Damond
constitutes a negligent or intentional infliction of emotional distress. The
Siblings have waived this theory of relief, however, by raising it for the first
time on appeal. See Forbush v. J.C. Penney Co., 98 F.3d 817, 822 (5th Cir.
1996). Even if the Siblings had properly asserted the claim in the district
court, a theory of relief based on negligent or intentional infliction of emotional
distress is precluded by Article 2315.6, which, as noted above, provides the
exclusive remedy for “mental anguish or emotional distress for injury to
another” under Louisiana law. See LA. CIV. CODE ANN. art. 2315.6; Trahan,
728 So. 2d at 1281.
       Accordingly, while no one disputes that the Siblings undoubtedly suffered
emotional hardship due to the death of their brother,3 they did not plead facts
sufficient to prove an essential element of their claim under Louisiana’s
bystander statute.
       AFFIRMED.




       3
          Because Damond had surviving children, the Siblings do not assert a wrongful death
or survival action claim. See LA. CIV . CODE ANN . arts. 2315.1(A)(3) & 2315.2(A)(3).

                                             5
