PJC General Negligence 2024

P ERSONAL I NJURY D AMAGES

PJC 28.12

at trial regarding emotional impact was related to postaccident fears about mother’s survival as opposed to that suffered from contemporaneous sensory perception of injury-causing occurrence). When bystander claimant also injured in occurrence in question. When a per son experiences mental anguish as a result of their own physical injuries incurred in the same occurrence or incident in which they witnessed the serious injury or death of a loved one, they are entitled to separate damages for mental anguish that flows from those injuries. See PJC 28.3. In that case, it may be appropriate to change “occurrence in question” in the bystander damages question to “[ serious injury/death ] of [ insert name of individual injured or killed ].” Zone of danger. There is no requirement that a plaintiff must have been within the “zone of danger” to recover under a bystander cause of action. See Keith , 970 S.W.2d at 542. Not a derivative cause of action. Bystander claims are independent—not deriva tive—causes of action. American Industries Life Insurance Co. v. Ruvalcaba , 64 S.W.3d 126, 144 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (op. on reh’g) (citing Estate of Barrera v. Rosamond Village, L.P. , 983 S.W.2d 795, 799–800 (Tex. App.—Houston [14th Dist.] 1998, no pet.)). However, a bystander cannot recover unless the injured person could also recover under Texas law. See Ruvalcaba , 64 S.W.3d at 144. Sensory and contemporaneous observance. The claimant may have any sen sory and contemporaneous observance of the occurrence. Freeman , 744 S.W.2d at 924 (observing that bystander may recover when they “contemporaneously perceive the accident or otherwise experience the shock of unwittingly coming upon the accident scene.”). See, e.g. , Bedgood v. Madalin , 589 S.W.2d 797, 802–03 (Tex. App.—Corpus Christi–Edinburg 1979), rev’d in part on other grounds , 600 S.W.2d 773 (Tex. 1980) (affirming award to father who was one hundred feet from occurrence in which son was struck by car, but heard impact and son’s scream); City of Austin v. Davis , 693 S.W.2d 31, 33 (Tex. App.—Austin 1985, writ ref’d, n.r.e.) (observing that claimant had not learned from others of occurrence in which son was killed but discovered son’s body at bottom of elevator shaft shortly after fall); Landreth v. Reed , 570 S.W.2d 486, 490 (Tex. App.—Texarkana 1978, no writ) (“In the modern view, actual obser vance 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.”) (affirming verdict in favor of bystander award of damages).

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