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Texas recognizes a claim of a bystander who experiences mental anguish as a result of witnessing an injury to a closely related person. The elements of the cause of action are: 1) the bystander was located near the scene of the accident, as contrasted with one who was a distance away from it; 2) the bystander's shock (mental anguish) resulted from direct emotional impact upon the bystander from the sensory and contemporaneous observance of the accident, as contrasted with simply learning of the accident from others after the accident; and 3) the bystander and the victim were closely related, as contrasted with an absence of any relationship, or the presence of only a distant relationship. United Services Auto. Assoc. v. Keith, 970 S.W.2d 540, 542 (Tex. 1998); Freeman v. City of Pasadena, 744 S.W.2d 923, 924 (Tex. 1988); Jones v. City of Houston, 294 S.W.3d 917, 920 (Tex. App. - Houston [1st. Dist.] 2009, pet. denied). Texas requires the bystander's presence when the injury occurred and the contemporaneous perception of the accident. Id. A relative that arrives at an accident scene while rescue operations are underway, and witnesses the injured persons' pain and anguish at the scene rather than the hospital, does not equate to a contemporary perception of the accident, and does not give rise to bystander cause of action. Id. The questions of whether the plaintiff is entitled to recover as a bystander and whether the accident and harm to bystander was reasonably foreseeable are questions of law for court to decide. Id. at 542. Bystander recovery has been denied to a person claiming to be just a friend of the victim and also to a woman the jury found was not a common law wife of the victim. Hinojosa v. South Texas Drilling & Exploration, Inc., 727 S.W.2d 320, 324 (Tex. App.-San Antonio 1987, no writ); Hastie v. Rodriguez, 716 S.W.2d 675, 676 (Tex. App.-Corpus Christi 1986, writ ref'd n.r.e.).  Recovery has been allowed in the stepchild/stepparent relationship. Grandstaff v. City of Borger, 767 F.2d 161, 172 (5th Cir. 1985). The cause of action is not applicable in medical malpractice cases. Edinburg Hospital Authority v. Trevino, 941 S.W.2d 76, 81 (Tex. 1997).

Bystander Recovery

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