PJC General Negligence 2024

PJC 28.12

P ERSONAL I NJURY D AMAGES

COMMENT When to use—generally. PJC 28.12 is appropriate when evidence supporting each element of a bystander cause of action has been admitted at trial. “To recover as a bystander, a plaintiff is required to establish that: (1) The plaintiff was located near the scene of the accident, as contrasted with one who was a distance away from it; (2) The plaintiff 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 learn ing of the accident from others after its occurrence; and (3) The plaintiff and the vic tim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.” United Services Automobile Ass’n v. Keith , 970 S.W.2d 540, 541–42 (Tex. 1998) (per curiam) (citing Freeman v. City of Pasa dena , 744 S.W.2d 923, 923–24 (Tex. 1988)). The elements of a bystander claim are intended, however, to be flexible and should be assessed and applied on a case-by-case basis. Keith , 970 S.W.2d at 542 (citing Freeman , 744 S.W.2d at 924). But a bystander claim may not succeed where the plaintiff “did not contemporaneously perceive the accident or otherwise experience the shock of unwittingly coming upon the accident scene.” Freeman , 744 S.W.2d at 924. PJC 28.12A should be used with PJC 28.12B only when there is a dispute about bystander status. The damages question in PJC 28.12B should be used in all bystander damages claims. No bystander cause of action in medical malpractice claim. The Texas Supreme Court has determined that there is no bystander cause of action in a medical malpractice claim. Edinburg Hospital Authority v. Trevino , 941 S.W.2d 76, 81 (Tex. 1997) (“We believe that the better-reasoned approach is not to permit bystander recov ery in medical malpractice cases.”). Question of fact or law. If the facts are undisputed, the question of whether a bystander cause of action is viable is a question of law. Keith , 970 S.W.2d at 542. But if there is a factual dispute over any of the three elements of a bystander claim, it pres ents a fact question for the jury. See Lehman v. Wieghat , 917 S.W.2d 379, 382 (Tex. App.—Houston [14th Dist.] 1996, writ denied). Recoverable damages. Bystanders are entitled to recover mental anguish dam ages suffered as a result of witnessing a serious or fatal accident where a close rela tionship exists between the plaintiff and the injured party. Trevino , 941 S.W.2d at 80 (“A bystander may recover mental anguish damages under Texas law after witnessing a close relative suffer a traumatic injury because of a defendant’s negligent action.”) (citing Freeman , 744 S.W.2d at 923). Proof of mental anguish required. Proof of mental anguish experienced as a result of an occurrence in which a serious or fatal injury has been inflicted upon a loved one is required. See, e.g. , General Motors Corp. v. Burry , 203 S.W.3d 514, 548 (Tex. App.—Fort Worth 2006, pet. denied) (op. on reh’g) (reversing bystander dam ages award for insufficiency of evidence on grounds that the only evidence introduced

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