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Bystander Claims in Texas
Texas Bystander Claims
DeKeyzer Law recently represented two minor children after their father was killed riding a motorcycle in Galveston, Texas. Through our investigation we discovered that the decedent’s five-year-old son was following behind the decedent while riding in a vehicle driven by the boy’s mother. Although the decent and the mother were not married, they lived in the same apartment complex, were raising their five-year-old son together, and were very close. After witnessing the crash from a distance, the mother stopped at the crash scene, exited her vehicle, and approached the decedent as he lay flat on his back. The decedent was trapped under the rubble, unable to speak, his only communication was holding the mother’s hand as she comforted him with good-bye words. The decedent passed about five minutes after the impact.
The Bystander theory creates a cause of action for an individual that suffers mental anguish after witnessing or experiencing a loved one get seriously injured or killed by the negligence of a tortfeasor. In the example above we applied the bystander claim legal theory and successfully recovered additional money for the family because a bystander is a separate personal injury claimant under Texas insurance law.
The Bystander Elements
In order to recover under the Bystander theory the claimant must establish four elements:
- A tortfeasor caused serious or fatal injuries to the primary victim
A tortfeasor is an individual or an entity that causes civil harm to an individual or another entity. The significance is that you cannot recover under a Bystander claim if the primary victim caused the accident and/or injury.
- The bystander was located by or near the accident
The bystander is not required to witness the actual incident but must be close enough to the incident to have some experience and perception of the accident. This requirement is determined by proximity, sound, smell, and sight. Courts have accepted the following scenarios to satisfy this requirement: (a) father about 100 feet from scene, heard impact of vehicle hitting son, and witnessed injuries to son moments later; and (b) a father found his dead son after a three-hour search for son at hospital. This “near the accident” requirement is not always an easy determination and this is where an experienced personal injury lawyer can make a difference.
Courts have ruled that some instances clearly do not satisfy the “near the accident” requirement such as: (a) mother at home when daughter involved in fatality crash a block away and arrived on scene moments after crash; and (b) father half a mile away from location where son was fatally shot despite father hearing gun shot.
- Bystander suffered shock
The bystander must prove that she suffered shock as a result of a direct emotional impact from a sensory and contemporaneous observance of the accident. This does not mean the bystander must faint or act hysterical, but this element does require some brief physical manifestation of shock by witnessing the accident.
The focus on this analysis is on the sensory and contemporaneous observance part meaning the bystander witnessed or experienced some part of the event as compared to witnessing the aftermath of the accident. For example, two sisters at a daycare together when older sister witnessed younger sister being rescued out of pool suffered contemporaneous shock. But a sibling that arrived on scene to neighbor’s pool as sibling was being rescued from pool did not suffer shock from contemporaneous observance because she was not present during accident.
- Bystander closely related to victim
The bystander must prove that she had a close familial relationship to the victim. Closely related usually means relatives residing in the same home. It obviously includes parents, children, or a spouse, but also includes stepchildren, stepparents, adopted children, grandparents, cousins, and foster parents. These additional categories of bystanders are very important as these bystanders likely have no other legal remedy other than the Bystander claim. Parents, children, and surviving spouses have other legal remedies when a family member is wrongfully killed. In today’s world of multi-generational households, the Bystander claim provides a needed legal remedy for an evolving family structure.
When should you apply the Bystander claim?
As noted in our first example above, the auto accident is probably the most common use of the Bystander theory because it creates an additional claimant under Texas law increasing the total financial recovery. The Bystander theory also benefits the extended family members that live together that otherwise would have no legal remedy after witnessing the loss of a loved one. The Bystander claim is not often used but is a very important legal theory to protect families from wrongdoers and insurance companies. Alvin personal injury lawyer Holland DeKeyzer has effectively used the Bystander claim to recover money for Texas families.
Contact DeKeyzer Law at (713) 904-4004 for a FREE consultation about your rights and options.