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Is a Bystander Claim Derivative in Texas?

Posted in pain and suffering, personal injury on March 19, 2020

Victims with physical injuries from an accident are not the only parties eligible to bring claims to damages in Texas. Texas also recognizes the mental anguish and emotional suffering a victim’s family members and loved ones go through – especially those who witnessed the traumatic accident firsthand. State law enables people negatively impacted by a family member’s accident to file what the courts call bystander claims.

Bystander claims are free-standing torts in Texas, meaning the plaintiff can bring a bystander claim separately from a victim’s direct civil action. Bystander claims are derivative in Texas, however, meaning the outcome of a related personal injury or wrongful death case will affect the outcome of the bystander claim.

What Is a Derivative Claim?

A derivative claim is very different from a direct claim. While a direct claim focuses on the legal rights of the individual directly injured, a derivative claim serves the interests of someone other than the victim. A wrongful death lawsuit is technically derivative, for example, since the plaintiff is not the actual victim of the accident in question. Bystander claims in Texas are also derivative.

The outcome of a direct claim will foretell how the courts will rule on a derivative claim, in general. If the direct claim finds the defendant not liable for the victim’s injuries, for example, the derivative claim will most likely fail as well. The courts will not find the same defendant not liable for the direct injury but liable for derivative emotional harm. Likewise, a positive verdict for a direct claim could portend a successful derivative claim, as long as the plaintiff has all the other necessary elements.

When Can Someone File a Bystander Claim?

It is not always possible to file a bystander claim after a harmful accident. In Texas, the plaintiff must be a close relative of the party directly involved in the accident. The courts restrict the right to recover to only the victim’s spouse, parents, grandparents, siblings and children. It is not a requirement that the plaintiff must live with the victim at the time of the accident. The claimant must also meet certain standards of proof to obtain compensation.

  • The plaintiff witnessed the accident or was nearby when it happened. The plaintiff must have seen the accident or been at the scene to qualify for damages, with a few exceptions. It typically will not be possible to seek damages for finding out about a loved one’s injury or death through someone else or over the phone.
  • The plaintiff suffered an unexpected, extreme and immediate shock. In general, the courts require the plaintiff to prove that witnessing the accident (or, in some cases, discovering the injured or killed loved one) was unexpected and an extreme shock. In other words, the plaintiff may not be eligible if he or she found out about the accident and purposefully drove to the scene.
  • The plaintiff can prove specific mental and emotional trauma. The person filing the claim must have proof of specific damages due to the incident, such as mental anguish or emotional distress. Common damages claimed in bystander lawsuits are post-traumatic stress disorder, nightmares, extreme anxiety, depression, insomnia and suicidal thoughts. The plaintiff might also have economic damages, such as lost wages from having to take mental health leave from work.

Proof during a bystander claim in Texas often comes in the form of testimony from relatives and friends who have seen firsthand how the accident impacted or traumatized the plaintiff. The plaintiff may also hire mental health experts to testify as to how an accident such as the one in question would reasonably affect an eyewitness or loved one in the same situation. An injury attorney can help with a bystander claim at the same time or separate from a personal injury or wrongful death claim in Texas.