Godfrey v. BP Products North America (Tex.App.- Houston [14th Dist.] Aug. 25, 2009)
(no sibling recovery under wrongful death act, bystander claim not viable as plaintiff did not witness
AFFIRMED: Opinion by Justice John Anderson
Before Justices Anderson, Frost and Guzman
14-08-00857-CV Leah Godfrey and Cheri Merritt v. BP Products North America
Appeal from 212th District Court of Galveston County
Trial Court Judge: SUSAN ELIZABETH CRISS
M E M O R A N D U M O P I N I O N
Appellants, Leah Godfrey and Cheri Merritt, appeal from the granting of appellee, BP Products North
America, Inc.'s motion for summary judgment. We affirm.
Factual and Procedural Background
Susan Taylor was killed in the March 23, 2005 explosion at appellee's Texas City, Texas refinery.
Taylor was the youngest sister of appellants. Appellants were not at the refinery at the time of the
explosion; they did not see the explosion; and they were not injured by the explosion. Appellants filed
suit against appellee asserting multiple causes of action they allege arose from the death of their
sister. Appellants sought to recover under the Texas Wrongful Death Act. See Tex. Civ. Prac. &
Rem. Code Ann. § 71.001 et seq (Vernon 2008). Appellants also asserted claims for negligence,
negligent hiring, supervision and/or management, and gross negligence. Appellants also asserted a
bystander claim and a claim for intentional infliction of emotional distress. The facts were undisputed.
Appellee moved for summary judgment on each of appellants' causes of action, which the trial court
granted. This appeal followed.
Appellants raise four issues on appeal challenging the trial court's granting of appellee's motion for
summary judgment on each of their causes of action.
A. The Standard of Review
The movant for summary judgment has the burden to show there is no genuine issue of material fact
and is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548
(Tex. 1985). In determining whether there is a genuine fact issue precluding summary judgment,
evidence favorable to the non-movant is taken as true and the reviewing court makes all reasonable
inferences and resolves all doubts in the non-movant's favor. Id. at 548-49. A defendant who
conclusively negates at least one of the essential elements of a plaintiff's cause of action is entitled to
summary judgment on that claim. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.
3d 794, 798 (Tex 2004). In determining whether there is a genuine fact issue precluding summary
judgment, evidence favorable to the non-movant is taken as true and the reviewing court makes all
reasonable inferences and resolves all doubts in the non-movant's favor. Nixon, 690 S.W.2d at 548-
549. If there is no genuine issue of material fact, summary judgment should issue as a matter of law.
Hasse v. Glazner, 62 S.W.3d 795, 797 (Tex. 2001). We review a trial court's summary judgment de
novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
B. Appellants Cannot Recover for Wrongful Death
Within their first issue, appellants contend the trial court erred when it granted appellee's motion for
summary judgment on appellants' wrongful death claims. At the same time, appellants admit that, as
siblings of Taylor, they are not covered by the Wrongful Death Act and argue for a good-faith
extension of the law. See Tex. Civ. Prac. & Rem. Code Ann. § 71.004(a) (Vernon 2008) (“An action to
recover damages as provided by this subchapter is for the exclusive benefit of the surviving spouse,
children, and parents of the deceased.").
There was no common law cause of action for wrongful death in Texas. Moreno v. Sterling Drug, Inc.,
787 S.W.2d 348, 356 (Tex. 1990). Therefore, wrongful death causes of action owe their existence to
statutes changing the common law rule. Id. Increasing the number of persons eligible to recover
under the Wrongful Death Act is not the function of an intermediate court of appeals. Instead, the
Wrongful Death Act reflects the public policy of Texas as determined by the Texas legislature and
courts must read the legislature's words as enacted, not revise them as desired. See Entergy Gulf
States, Inc. v. Summers, 282 S.W.3d 433, 476 (Tex. 2009) (Willet, J., concurring). “The wisdom or
expediency of the law is the Legislature's prerogative, not ours." Id. (quoting Tex. Workers' Comp.
Comm'n v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995)). We overrule appellants' first issue to the
extent appellants ask this court to extend the scope of the Wrongful Death Act to include siblings as
C. Appellants Cannot Recover on Their Negligence Claims
Appellants also asserted claims for negligence and negligent hiring, supervision, and/or
management. For each, appellants do not claim they were injured themselves in the explosion, but
that appellee was negligent in causing their sister's death, which, in turn, caused their mental anguish
There is no general duty in Texas not to negligently inflict emotional distress. Verinakis v. Medical
Profiles, Inc., 987 S.W.2d 90, 94-95 (Tex. App.-Houston [14th Dist.] 1998, pet. denied) (citing Boyles
v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993)).
There are few situations in Texas in which a claimant who is not physically injured by the defendant's
breach of a duty may recover mental anguish damages. Id. at 95. Here, appellants admit they
were not physically injured in the explosion and that their injuries were emotional injuries arising out of
their sister's death, such as anxiety and depression, and the consequent physical manifestations
arising from that emotional distress. Because appellants were not direct victims of appellee's alleged
negligence, in the absence of any other claim, they may not recover for any mental anguish caused
by physical injuries to others in that accident. See Chapa v. Traciers & Associates, Inc., 267 S.W.3d
386, 397 (Tex. App.-Houston [14th Dist.] 2008, no pet.). We overrule the remainder of appellants'
first issue addressing their negligence claims.
D. Appellants Cannot Recover as Bystanders
In their second issue on appeal, appellants contend the trial court erred when it granted appellee's
motion for summary judgment on appellants' bystander claim. We disagree.
A bystander claim falls within an exception to the general rule barring recovery for negligent infliction
of emotional distress. Id. at 398. Under this legal theory, mental anguish damages are recoverable
for the contemporaneous sensory perception of a serious or fatal injury to a close relative. Id. To
recover as a bystander, a plaintiff must establish that she (1) was located near the scene of the
accident, as contrasted with one who was a distance away from it; (2) suffered shock as a result of
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; and (3) was
closely related to the primary victim of the accident. United Services Automobile Association v. Keith,
970 S.W.2d 540, 541-42 (Tex. 1998).
The evidence was undisputed that appellants were not at or near the Texas City refinery at the time of
the explosion. The evidence was also undisputed that appellants did not contemporaneously
perceive their sister's injury as it happened or immediately afterward. Finally, the evidence was
undisputed that appellants learned of the explosion from others. As appellants did not meet the first
two requirements to recover on a bystander claim, the trial court did not err when it granted appellee's
motion for summary judgment on that cause of action. See Chapa, 267 S.W.3d at 398-400. We
overrule appellants' second issue.
E. Appellants Cannot Recover for Intentional Infliction of Emotional Distress
In their third issue, appellants challenge the trial court's granting of appellee's motion for summary
judgment on appellants' intentional infliction of emotional distress causes of action.
To recover for intentional infliction of emotional distress, a plaintiff must prove that: (1) the defendant
acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the
defendant's conduct proximately caused the plaintiff emotional distress; and (4) the emotional distress
suffered by the plaintiff was severe. Standard Fruit and Vegetable Co., Inc. v. Johnson, 985 S.W.2d
62, 65-66 (Tex. 1998). In addition, the intended or primary consequence of the defendant's conduct
must be to cause emotional distress, not physical injury. Id. at 68; Durckel v. St. Joseph Hosp., 78 S.
W.3d 576, 586 (Tex. App.-Houston [14th Dist.] 2002, no pet.). Therefore, a claim of intentional
infliction of emotional distress will not lie if emotional distress is not the intended or primary
consequence of the defendant's conduct. Durckel, 78 S.W.3d at 586.
The incident underlying appellants' intentional infliction of emotional distress causes of action was a
refinery explosion. The primary risk of this incident was physical injury or death, not emotional
distress. Because the primary risk was not emotional distress, appellants cannot recover on their
intentional infliction of emotional distress causes of action and the trial court did not err when it
granted appellee's motion for summary judgment on these causes of action. We overrule
appellants' third issue.
F. Appellants Cannot Recover for Gross Negligence in the Absence of Negligence
In their fourth issue, appellants contend they were injured as a result of appellee's negligent conduct
which should have precluded the trial court from granting appellee's motion for summary judgment on
their gross negligence claims. However, we have already determined appellants' negligence claims
were without merit. Therefore, since a plaintiff cannot assert a separate cause of action for gross
negligence in the absence of a viable negligence claim, we hold the trial court did not err in granting
appellee's motion for summary judgment on this cause of action. See Tesoro Petroleum Corp. v.
Nabors Drilling USA, Inc., 106 S.W.3d 118, 126-27 (Tex. App.-Houston [1st Dist.] 2002, pet. denied).
We overrule appellants' fourth issue on appeal.
Having overruled all of appellants' issues on appeal, we affirm the trial court's summary judgment.
/s/ John S. Anderson
Panel consists of Justices Anderson, Frost, and Guzman.
 These include intentional or malicious torts, such as libel, suits for wrongful death, and actions by
bystanders who witness a close family member's death or serious injury. Verinakis v. Medical Profiles,
Inc., 987 S.W.2d 90, 95 (Tex. App.-Houston [14th Dist.] 1998, pet. denied). This case does not
involve an intentional tort, such as libel, and we have already rejected appellants' invitation to extend
the coverage of the Wrongful Death Act. We address appellants' bystander claims in section D of this
 With respect to appellants' argument that appellee's agreement to plead “guilty" to a violation of
the Clean Air Act somehow “preempts" appellee's right to summary judgment, appellants failed to
point out any legal authority supporting this contention. Accordingly, this argument is waived. See
Tex. R. App. P. 38.1(i).