TORT LAW

WINTER 2009-2010

Jones v. City of Houston, W.L. 2634226; LEXIS 6852 (Tex. App—Houston [1^st Dist.] 2009)

Negligent Infliction of Emotional Distress; Bystander Recovery: Brother and sister siblings of 13-year-old Logan Jones heard that Logan had been swept away down a storm drain and that rescuers were attempting to find him. They went to the scene and, after waiting there about an hour, saw Logan’s body float out of a different culvert. He was already deceased at that point. They alleged great mental anguish in having witnessed his body floating in the water and sought recovery against the defendant City of Houston for its negligence in permitting the drowning to occur and causing their emotional distress. The trial court granted the City’s summary judgment on the ground that the plaintiffs did not satisfy the elements of a bystander claim in Texas. Held: The Court of Appeals affirmed the summary judgment distinguishing prior intermediate Texas appellate case law relied upon by the plaintiffs. Although there has previously been some confusion in Texas law, Texas courts have made fairly clear that a bystander’s claim for emotional distress is only cognizable in a negligence context when the three-part Freeman v. City of Pasadena, 744 S.W.2d 923, 923-24 (Tex. 1988) (citing Dillon v. Legg, 441 P.2d 912, 922 (Col. 1968) test has been satisfied—(1) death or serious injury to a close relative; (2) the bystander’s close physical proximity to the scene of the accident; and (3) the bystander’s contemporaneous sensory observation of the accident. The purpose of these requirements is to help weed out legitimate claims for emotional injury from other possible claims and to help define the otherwise broad parameters of a claim for negligently inflicted emotional distress. There have been some prior cases involving accidents with injuries that took awhile to unfold and relative bystanders who came upon the scene while the events were still unfolding. The Court here distinguished those cases. Here the plaintiffs’ brother had already passed away and they came upon the scene after hearing about the brother’s disappearance from others. They did not contemporaneously witness either the accident or his injuries as they were being inflicted upon him. For these reasons, the trial court’s entry of judgment as a matter of law was appropriate.

Sepaugh v. LaGrone, W.L. 2902711; LEXIS 7195 (Tex. App.—Austin 2009)

Parental Immunity; Negligence Per Se: This was a wrongful death and survivorship claim brought by a boy’s mother after the son was killed in a home fire. The Defendant was the boy’s father. The parents had previously been divorced and the mother had been awarded sole managing conservatorship of the son. During a stay at the father’s house several years later, per the father’s visitation rights, the house caught on fire and the son was killed (along with several other children not related to the plaintiff-mother). The plaintiff asserted that the father had failed to maintain smoke alarms in the bedrooms in violation of an Austin city ordinance. The father, however, asserted that even if his conduct violated the city ordinance—and thus might give rise to proof of negligence through the doctrine of negligence per se—he was still entitled to summary judgment due to parental immunity. The trial court granted the summary judgment on this ground. The trial court likewise entered summary judgment on the mother’s claim for loss of parental consortium, saying that the immunity for the estate’s claim likewise barred the derivative claim belonging to the mother. Held: The Court of Appeals affirmed the summary judgment applying the doctrine of parental immunity. According to the Court, Texas recognized the continued vitality of the parental immunity doctrine due to the need to maintain the traditional discretion afforded parents (even when only having visitation rights over the child) in making decisions about how to provide nurture, care, and discipline for their children. Recognizing that the Texas Supreme Court had previously created an exception to this immunity when the parent had engaged in careless driving of an automobile that injured the child, the Court refused to extend that exception beyond allegations of negligent driving. In dissent, one member of the Court took the position that there was no room for the exercise of parental discretion given the Austin ordinance mandating smoke alarms for the bedrooms in the house—the violation of which gave rise to criminal fines.

FPL Farming v. Environmental Processing Systems, W.L. 3460710; LEXIS 8268 (Tex. App.—Beaumont 2009)

Trespass; Subsurface Injections; TNRCC Approval of Operations: The plaintiff was a property owner who owned property near a site of the defendant’s operations. The defendant had obtained a permit from the Texas Natural Resource Conservation Commission for construction of two wells that would be injected with commercial, nonhazardous industrial waste more than a mile below the surface of land. There was knowledge by the defendant and the TNRCC that a waste plume from the well would migrate into the deep subsurface of the plaintiff’s property eventually. The plaintiff sued for trespass seeking injunctive relief to stop defendant’s subsurface operations and the trial court granted defendant’s summary judgment. Held: The Court of Appeals affirmed the dismissal of the case finding that there was no actionable trespass in these circumstances. The court noted that historical concepts of the full breadth of a property owner’s rights—that the rights ran from the heavens to the center of the earth above and below the property—had been modified in light of modern demands. Just as an airplane flying over one’s property did not normally give rise to a trespass cause of action any longer, neither should the defendant’s deep subsurface operations conducted with the permission of the TNRCC give rise to a trespass claim.

Brazoria County v. Van Gelder, W.L. 3109912; LEXIS 7579 (Tex. App.—Houston [14^th Dist.] 2009)

Negligence; Governmental Immunity; Texas Tort Claims Act; Special Defects: The plaintiff was injured when the car in which she was riding as a passenger lost control on a county road. The road had a sharp rise immediately before it connected to a bridge. The county installed a sign that warned “hump ahead.” The plaintiff claimed the sign did not adequately warn of the dangers actually confronting drivers at that spot on the road. The county asserted a plea to the court’s jurisdiction relying upon governmental immunity. The trial court denied this plea and an interlocutory appeal was taken to the Court of Appeals. Held: The Court of Appeals reversed the trial court’s refusal to grant the plea to the court’s jurisdiction holding that governmental liability protected the county from suit as no statutory waiver applied. Although the Texas Tort Claims Act (TTCA) provided for a waiver of immunity for “special defects” the Court held that the design of the road and the warning sign chosen by the county did not constitute a special defect. Such defects were generally considered to be things such as excavations on a roadway or other obstruction. Bumps and rises in a roadway were not generally considered to be special defects. Furthermore, the fact that the road’s condition had been unchanged for several decades evidenced the fact that it was neither unusual nor an unexpected danger. The TTCA also provided a waiver for immunity for premises defects. However, even if the road design could be considered a premises defect, the government retained immunity for discretionary acts. The design of a roadway involved many policy decisions and would be an exercise of the government’s discretionary function. Accordingly, sovereign immunity was not waived and the trial court should have granted the plea to its jurisdiction.