Jones v. City of Houston (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Jennings)
(TTCA, drowning death of child, uncovered culvert, siblings' bystander claim rejected, drowning deaths)
[W]e hold that the City's summary judgment evidence established as a matter of law
that the Jones siblings could not recover as bystanders for any mental anguish and
emotional trauma caused by their brother's drowning. Thus, we further hold that the trial
court did not err in granting the City summary judgment on the bystander claims of the
AFFIRM TC JUDGMENT: Opinion by Justice Jennings
Before Justices Jennings, Alcala and Higley
01-08-00905-CV Landon Jones and Loren Jones v. City of Houston
Appeal from 215th District Court of Harris County
Trial Court Judge: Hon. Levi J. Benton
Dissenting Opinion by Justice Alcala
[Text of ]
O P I N I O N
[Please note that hyperlinks and bold typeface are not part of the original opinion as released by the court. For pdf version, click
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Appellants, Landon and Loren Jones (the "Jones siblings"), challenge the trial court's rendition of summary
judgment in favor of appellee, the City of Houston ("the City"), on their bystander claims for the wrongful
death of their brother. In their sole issue, the Jones siblings contend that the trial court erred in granting
summary judgment in favor of the City.
Factual and Procedural Background
In the plaintiffs' second amended petition, the Jones siblings alleged that on June 25, 2004, Logan Jones, their
thirteen-year-old brother, drowned when he was sucked into and trapped underwater in a culvert owned
and maintained by the City. After spending over an hour waiting by the culvert for rescue teams to find their
brother, the Jones siblings saw Logan's body float out of a culvert several blocks north of the culvert. After
seeing Logan's injuries and that he had died, the Jones siblings "began to experience extreme nervousness,
anxiety, depression, mental anguish, distractibility, and difficulty sleeping," and they sought recovery for these
damages as bystanders. The Jones siblings based their bystander claims for wrongful death on the City's
gross negligence in creating and maintaining the culvert.
The City, in its motion for summary judgment, contended that the Jones siblings were not entitled to recover for
their emotional trauma and mental anguish as bystanders. The city attached to its motion, as summary
judgment evidence, the depositions of the Jones siblings.
In her deposition, Logan's sister, Loren, testified that on the morning that Logan died, she was at home with
her mother and a City fire department representative called her home and spoke to her mother. After the
telephone call, Loren saw her mother on the floor crying. When Loren asked what had happened, her mother
told her that Logan had been sucked into a drainage ditch and he could not be found. Loren then called her
brother, Landon, and told him to come home "right away." When Logan arrived, the three of them went to the
culvert, and Loren saw that "[f]ire trucks were everywhere" and that City police officers were trying to keep
everyone away from the culvert. After a short time, a City diver arrived, and "someone" told Loren that Logan
"might be stuck in an air pocket and holding on." However the diver's attempts to locate Logan were
Loren further testified that after about an hour, she saw Logan's body float "out into the bayou" and he was
facedown in the water and not moving. Loren's brother, Landon, turned her around so that she could not see
Logan's body, but she glimpsed rescue workers trying to resuscitate him. She eventually saw the rescue
workers take Logan away in an ambulance. Although Logan had been in the culvert for over an hour, Loren
believed he was alive.
In his deposition, Landon testified that after receiving the telephone call from Loren, he drove to his parents'
house, picked up his mother and Loren, and drove to the culvert. At the culvert, a City police officer told
Landon that they had not been able to find Logan yet. Subsequently, a City diver arrived and began climbing
down into different manholes around the culvert with a flashlight. "[W]ell over an hour" after Landon arrived at
the culvert, his brother "floated out of the drain." Landon saw that his brother was facedown and not moving.
Landon then heard his sister scream and saw her collapse. He steadied his sister and held his mother to keep
her from going over to see the body. Landon saw rescue workers trying to resuscitate his brother, and then
they placed him into an ambulance. Landon noticed that his brother's skin looked pale.
Based on the deposition testimony of the Jones siblings, the City argued that they were not "bystanders"
because they were told about the accident when they were at their parents' house. The City asserted that it
was clear that Logan had drowned some time before they arrived at the scene. The trial court granted the
City's motion for summary judgment as to the bystander claims of the Jones siblings.
In their sole issue, the Jones siblings argue that the trial court erred in granting the City summary judgment
because the City's summary judgment evidence did not establish, as a matter of law, that they cannot recover
damages as bystanders. The City argues that the Jones siblings are not entitled to recover as bystanders
because they did not have "a contemporaneous perception of the accident," nor were they in the vicinity of the
accident when it occurred.
To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to judgment as
a matter of law and that there is no genuine issue of material fact. Tex. R. Civ. P. 166a(c); Cathey v. Booth,
900 S.W.2d 339, 341 (Tex. 1995). A defendant moving for summary judgment must either (1) disprove at least
one essential element of the plaintiff's cause of action or (2) plead and conclusively establish each essential
element of its affirmative defense, thereby defeating the plaintiff's cause of action. Cathey, 900 S.W.2d at 341;
Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex. App.--Houston [1st Dist.] 2005, pet. denied).
Historically, Texas courts have been reluctant to allow recovery for negligently inflicted mental anguish
because it is difficult to predict or verify such injuries. Accordingly, they have limited a plaintiff's ability to
recover in various ways. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 n.6 (Tex. 1998); see
Kaufman v. Miller, 414 S.W.2d 164, 168-71 (Tex. 1967) (recognizing that plaintiff may not recover "as a result
of an injury or threatened injury to a third person" when plaintiff was "unusually or peculiarly susceptible to
emotional trauma and that fact is unknown to the negligent tortfeasor"); Houston Elec. Co. v. Dorsett, 194
S.W.2d 546, 548 (Tex. 1946) (limiting recovery to plaintiffs who are physically injured and in "the zone of
danger"); Hill v. Kimball, 17 Tex. 210, 210, 13 S.W. 59, 59 (1890) (allowing recovery if plaintiff suffered "a
physical personal injury . . . produced through a strong emotion of the mind"). In Freeman v. City of Pasadena,
the Texas Supreme Court set a clear and uniform limitation on bystander recovery for mental anguish by
adopting the three-factor bystander recovery test. 744 S.W.2d 923, 923-24 (Tex. 1988) (citing Dillon v. Legg,
441 P.2d 912, 920 (Cal. 1968)).
The three-factor bystander recovery test limits recovery of damages for mental harm as a bystander to
plaintiffs who establish three elements. United Servs. Auto. Ass'n v. Keith, 970 S.W.2d 540, 542 (Tex. 1998)
(per curiam) (emphasis added); see Freeman, 744 S.W.2d at 923-24; see also Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 47 (Tentative Draft No. 5, 2007) (titled "Negligent Infliction Of
Emotional Disturbance Resulting From Bodily Harm To A Third Person"). First, the plaintiff must show that he
was "located near the scene of the accident, as contrasted with one who was a distance away from it." Keith,
970 S.W.2d at 542. Second, the plaintiff must show that he "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
learning of the accident from others after its occurrence." Id. (emphasis added); see Freeman, 744 S.W.2d at
924 (reasoning that plaintiff could not recover as bystander because he "did not contemporaneously perceive
the accident or otherwise experience the shock of unwittingly coming upon the accident scene"); see also
Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 47 cmt. d. Third, the plaintiff must
show that he and the victim "were closely related, as contrasted with an absence of any relationship or the
presence of only a distant relationship." Keith, 970 S.W.2d at 542; see also Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 47 cmt. e. When the material facts are undisputed, the question of
whether a plaintiff is entitled to recover as a bystander is a question of law. Keith, 970 S.W.2d at 542.
Nevertheless, the bystander elements are "flexible" and should be evaluated on a case-by-case basis. Id.
In support of their argument that they are entitled to compensation for their damages as bystanders, the Jones
siblings rely on four cases: Lehmann v. Wieghat, 917 S.W.2d 379 (Tex. App.--Houston [14th Dist.] 1996, writ
denied); City of Austin v. Davis, 693 S.W.2d 31 (Tex. App.--Austin 1985, writ denied); Landreth v. Reed, 570
S.W.2d 486 (Tex. App.--Texarkana 1978, no writ); and Thornton v. Home Depot U.S.A., Inc., No. A-04-CA-1039
AWA, 2006 WL 2022920 (W.D. Tex. July 17, 2006) (not published). They assert that in these four cases, as in
the instant case, "the injury producing events took some time to unfold," and, in such circumstances, these
cases "clearly establish that family members who learn of such a situation before reaching the scene, and are
present as the events unfold and the injury is ultimately realized, can qualify as bystanders under Texas law."
However, the cited cases do not establish that the Jones siblings qualify as bystanders under Texas law, and,
furthermore, none of the four cases are binding on this Court.
In Landreth, the Texarkana Court of Appeals concluded that a jury's award of damages to a plaintiff as a
bystander to her sister's drowning was supported by the evidence. Landreth, 570 S.W.2d at 490. The court
reasoned that "actual observance 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." Id. (emphasis added). The court
recognized that "the evidence [was] uncertain as to whether [the plaintiff] saw [her sister] in the pool," but the
evidence supported a conclusion by the jury that "only a few minutes elapsed between [her sister's] entry into
the pool and her discovery and the resulting resuscitative efforts." Id. at 489-90. The court reasoned that such
a situation "is far different from the case where one seeks damages for his grief or agony at merely seeing the
dead body of a loved one." Id. at 490. Here, the evidence is undisputed that the Jones siblings did not see their
brother drowning in the water, and, unlike the plaintiff in Landreth, the Jones siblings saw their brother's body
surface after they had been waiting at the culvert for at least one hour, not minutes after he had entered the
water. Additionally, the Jones siblings were not present at the culvert when the accident occurred, as was the
plaintiff in Landreth, nor did they unwittingly come upon the accident scene.
In Davis, the plaintiff was not present when the accident occurred. Davis, 693 S.W.2d at 33. The plaintiff
arrived at a hospital to visit his son, who had suffered severe neurological damage, but his son's room was
empty. Id. at 32. In the ensuing search of the hospital, the plaintiff, accompanied by a hospital security officer,
found his son's body at the base of a ten-story air shaft. Id. at 33. Although the plaintiff "was not at the foot of
the airshaft at the moment his son fell," the Austin Court of Appeals reasoned that he had a contemporaneous
perception of the accident because he "did not learn of the incident from others." Id. at 34; see Freeman, 744
S.W.2d at 924 (reasoning that plaintiff was not a bystander because he did not "experience the shock of
unwittingly coming upon the accident scene"). Here, the Jones siblings went to the culvert after they had
learned of their brother's accident. Unlike the plaintiff in Davis, they did not unwittingly come upon the accident
In Lehmann, the Fourteenth Court of Appeals determined that a trial court had not erred in submitting a
question to a jury on whether a plaintiff had a "sensory and contemporary perception" of the accident. 917
S.W.2d at 383. The court reasoned that because "the facts were disputed" as to whether the plaintiff perceived
the accident or learned "of the accident from others after its occurrence," that question could be submitted to
the jury. Id. Here, however, the evidence is undisputed that the Jones siblings learned of the accident from
others before going to the culvert. See Keith, 970 S.W.2d at 542 ("But, when the material facts are undisputed,
as they are here, whether the plaintiff is entitled to recover as a bystander is a question of law.").
Finally, the Jones siblings rely on Thornton as a "well-reasoned opinion" that "discusses application of Texas
bystander law involving such ongoing events, in contrast to instantaneous injuries." See Thornton, 2006 WL
2022920. In Thornton, the plaintiff saw a fire from a distance but did not know that her house was on fire or
that her sister was trapped inside the house. Id. at *3. Only after she arrived at her house and saw the fire did
her father tell her that her sister was trapped inside the burning house. Id. at *3. However, unlike the Jones
siblings, the plaintiff in Thornton had not learned of the accident from others. Id. Here, the Jones siblings
learned about the accident from others and then chose to travel to the culvert. In doing so, they did not
"experience the shock of unwittingly coming upon the accident scene." See Freeman, 744 S.W.2d at 924.
Moreover, even if the cases cited by the Jones siblings supported their argument, we are bound by Keith. In
Keith, the Texas Supreme Court denied a plaintiff's bystander claim, in a case with similar facts, concluding that
the plaintiff did not establish that she had a contemporaneous perception of the accident. 970 S.W.2d at
540-42. The Court reasoned that:
The emotional impact that [the plaintiff] undoubtedly suffered did not result from a sensory and
contemporaneous observance of the accident. In this regard, [the plaintiff] 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. . . . The
fact that [the plaintiff] 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. at 542. In Keith, the plaintiff was asleep in her house when her daughter was injured in a car accident. Id. at
541. When a neighbor told the plaintiff that something had happened to her daughter, she rushed to the scene
of the accident where she saw the wrecked car and heard her daughter in the wreckage making "scary noises
and crying out." Id. The plaintiff accompanied her daughter, by ambulance, to the hospital, where her daughter
Although the Jones siblings do not cite or discuss Keith, they do argue that "cases involving automobile
accidents and analogous instantaneous occurrences" are distinguishable from the circumstances in this case
because here, "the injury producing events took some time to unfold." However, we discern no analytically
significant difference between the car accident in Keith and the drowning in this case. In Keith, the plaintiff did
not see the car accident but later went to the scene of the collision and saw her daughter taken out of the
wreckage and transported to the hospital where she died. Id. Similarly, here, the Jones siblings did not see
their brother drown, but they did go to the scene where they saw his body taken out of the water and
transported to the hospital. In both cases, a family member was informed of an accident, went to the scene,
and saw the effect of the accident. See id. Keith controls our holding.
Accordingly, we hold that the City's summary judgment evidence established as a matter of law that the Jones
siblings could not recover as bystanders for any mental anguish and emotional trauma caused by their
brother's drowning. Thus, we further hold that the trial court did not err in granting the City summary judgment
on the bystander claims of the Jones siblings.
We overrule the Jones siblings' sole issue.
We affirm the judgment of the trial court.
Panel consists of Justices Jennings, Alcala, and Higley.
Justice Alcala, dissenting.