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Austin v. Davis - 693 S.W.2d 31 (Tex. App. 1985)

Rule:

The bystander doctrine, as articulated, generally requires proof of three elements, two of which are: (1) The plaintiff must have been in close proximately to the scene of the incident; and (2) The plaintiff's injuries must have been proximately caused by a contemporaneous perception of the incident.

Facts:

Kenny Davis (Kenny) suffered severe neurological damage resulting from head injuries, and was confined in a mental hospital. His father, Kenneth Richard Davis (Davis) visited his son every day during his six-week hospitalization. Kenny was confused and disoriented, and was in danger of injuring himself and others. For this reason, he was always either medicated or physically restrained. On the day of the incident, the hospital staff failed to do either. When Davis arrived at the hospital for his daily visit, Kenny was not in his room and the ward staff was unable to locate him, although they were then searching the hospital and surrounding grounds. Davis joined the search, and found his son’s dead body at the base of a 10-story shaft. Consequently. Davis has suffered physical injuries caused by emotional distress inflicted by these circumstances. Plaintiff Davis sued Brackenridge Hospital, an operation of defendant City of Austin, Texas, for both for the wrongful death of his son and separately for himself in a bystander action. The trial court awarded Davis damages in his separate bystander action. Defendant City challenged the award of damages to Davis, arguing that Davis did not have a separate cause of action for bystander injuries, and if Davis did, he was not a separate “person injured,” within the meaning of the Tort Claims Act.

Issue:

By finding his son had fallen to his death, did Davis has a separate cause of action for his own injuries? If he did, was Davis a separate “person injured,” within the meaning of the Tort Claims Act?

Answer:

Yes, to both questions.

Conclusion:

According to the Texas appellate court, the bystander doctrine generally required proof of three elements, two of which include: (i) the plaintiff must have been in close proximity to the scene of the incident; and (ii) the plaintiff’s injuries must have been proximately caused by a contemporaneous perception of the incident. The Court noted that based on the stipulated facts, Davis was intensely involved in the search and subsequent discovery of his son; thus, Davis was brought so close to the reality of the accident as to render his experience an integral part of it. The Court averred that Davis experienced sufficient perception of the incident to satisfy the requirements of the “bystander doctrine.” Because Davis satisfied the requirements of the bystander doctrine, the Court held that he may maintain his own cause of action – he need not join the suit of the other wrongful death beneficiaries. In light of the circumstances, the Court concluded that Davis was a “person injured” for purposes of the damage litigation.

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