Bystander recovery claims are claims for negligent infliction of mental anguish which are available under Texas law to a limited class of persons who contemporaneously witness the serious injury or death of a loved one. The three main elements of a bystander recovery claim are as follows:
1) The claimant must show that they were at or reasonably near the scene of the accident as opposed to some distance away. With the rapid advance of modern technology and the increase in remote monitoring and imaging it is easy to imagine how a family member might inadvertently view the injury or death of a loved one from distances as far away as a foreign country. These situations are unlikely to meet the location requirement of a bystander recovery claim.
2) The bystander recovery claimant must show that he experienced shock and emotional trauma from a contemporaneous perception of the accident as opposed to learning of the accident and purposely traveling to the scene of the accident. Good examples of qualifying contemporaneous perceptions are when a parent witnesses a child being struck and killed by an automobile, a wife who is a passenger in an automobile being driven by her husband witnesses the death of her husband during the accident, or a family member happens upon an accident unknowingly only to realize that they are viewing the death of a loved one.
3) The bystander recovery claimant must show that they were closely related to the victim. The relationship requirements in a bystander recovery claim are less strict than in a wrongful death claim. Texas wrongful death claimants are limited to parents, spouses, and children. The class of persons entitled to make a wrongful death claim is limited and the applicable statute is very narrowly and strictly construed. The right to make a wrongful death claim does not turn upon the claimant’s relationship with the deceased. Even estranged family members who fall within the statutory definition of wrongful death claimants have a right to make a wrongful death claim. By contrast, the right to make a bystander recovery claim depends in part upon the extent of the relationship between the claimant and the injured or deceased victim. Parents, spouses, children, step-parents, step-siblings, grandparents, and other persons who have long standing familial type relationships with the injured or deceased victim have been found by Texas courts to have a right to make bystander recovery claims.
Bystander recovery claims are important even to persons who have a right to make a wrongful death claim because of their insurance coverage implications. Many Texas insurance policies have per person limits. These per person limits limit the amount of insurance available to any single injured person and include in that limit the claims of persons making derivative claims such as wrongful death claims. However, under Texas law a bystander recovery claim is an individual, free standing tort claim and gives rise to an additional per person insurance limit. For example, a common Texas insurance policy is one which provides $100,000.00 in liability coverage per person and $300,000.00 in total coverage per accident. If a drunk driver crosses the center line of a highway and kills a husband but causes no significant physical injuries to his wife who was a passenger in the vehicle then the husband’s claim together with the wife’s wrongful death claim is limited under Texas law to one per person policy limit in the amount of $100,000.00. However, because the wife can satisfy the three bystander recovery claim requirements she is also entitled to make an individual claim for bystander recovery for contemporaneously witnessing the death of her husband. This bystander recovery claim qualifies for an additional per person limit of liability thus doubling the amount of the available insurance coverage from $100,000.00 to $200,000.00.
Texans who witness the serious injury or death of a loved one would be well advised to investigate the possibility of a bystander recovery claim.
For more information contact a Tyler Wrongful Death Attorney today.