There is no cause of action for negligent infliction of emotional distress in Texas. Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993). However, this does not preclude a plaintiff from recovery mental anguish damages caused by a breach of some other legal duty, such as negligent infliction of direct physical harm on person through an accident, or an assault and battery on the person. Additionally, 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. For example, a claimant may recover mental anguish damages caused by wrongful death of a parent or child, defamation, or bystander claims. A bystander claim falls within an exception to the general rule barring recovery for negligent infliction of emotional distress. Chapa v. Traciers & Associates, Inc., 267 S.W.3d 386, 398 (Tex. App. -- Houston [14th Dist.] 2008, no pet.  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).

Negligent Infliction of Emotional Distress

© 2020 Mark Courtois and Diane Davis

© 2020 Funderburk Funderburk Courtois, LLP.   All rights reserved.

Unless otherwise noted, attorneys in the firm are not certified by the Texas Board of Legal Specialization.

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