Justice Alcala Dissents in Child's Drowning Death Case

DISSENTING OPINION BY JUSTICE ELSA ALCALA

in Jones v. City of Houston (Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Majority opinion by Jennings holding that siblings can't recover as bystanders for wrongful death of brother who was swept into and drowned in uncovered culvert, storm sewer; affirming summary judgment for the defendant city)

This case concerns the bystander claims filed by the siblings of a 13-year-old child, Logan Jones, who died as a result of drowning in a City of Houston culvert that did not have a protection grate to block the culvert.

For two reasons, I respectfully dissent from the majority opinion's rejection of the claims.

First, contrary to the applicable law for review of summary judgments, the majority opinion fails to view the evidence in a light most favorable to the non-movant plaintiffs, the appellants, Landon and Loren Jones.

Second, the majority opinion misapplies the precedent of the Texas Supreme Court and Texas intermediate courts. Because the record includes some evidence that the event was ongoing when the Jones siblings were present at the culvert, I would reverse the summary judgment and remand for trial.

The Evidence

Loren learned from a telephone call that her brother Logan "was sucked into a drainage ditch and they could not find him." Lauren called Landon, the brother of Loren and Logan, who quickly returned to the house. Landon, Loren, and their mother then went to the nearby culvert. There, Loren learned that rescue workers "were looking for him" and that Logan "might be stuck in an air pocket" holding on. Landon watched a diver search for Logan for 30 minutes, going into several manholes, until Logan floated into the bayou. Although Logan had been in the culvert for about one hour when he appeared, rescue workers performed Cardio Pulmonary Resuscitation (CPR) on Logan "trying to resuscitate him," and Landon believed that those efforts might allow Logan to survive.

Houston Police Department dive team officer Mark Janson received the call for assistance. Janson believed "there was a possibility of a rescue." Janson explained that when he arrived at the culvert, he hoped Logan "could be in an air pocket up in the streets." As he searched for Logan, Janson was "very, very focused on trying to locate [Logan's] body, locate him hopefully alive." When Logan was found, Janson believed it was a "possible live recovery" and he was "hopeful that [Logan] was going to make it." In hindsight, Janson changed his opinion to a belief that Logan "was expired before [Janson] ever arrived at that scene."

The majority opinion erroneously sees the evidence in a light favorable to the movant, the City, by contending there is no dispute Logan died before the siblings arrived. But there is a dispute. Although the diver said that in hindsight he believed Logan was deceased before the diver arrived, the diver acknowledged that his state of mind was different during the events. The diver testified that at the time of the events, he conducted a rescue search for a live person under the belief that Logan could have survived by finding an air pocket under the street and that CPR was conducted on Logan to try to resuscitate him. If the evidence was "undisputed" that Logan was deceased when his siblings arrived, as the majority contends, then the evidence would conclusively show that the diver was conducting a recovery mission to seize the body of Logan and no CPR would have been conducted on the deceased body.

The evidence shows a dispute whether Logan was alive at the time the siblings arrived at the culvert, and, therefore, a dispute exists whether the siblings observed the drowning or merely its aftermath. That is the type of dispute that must be resolved by a jury. See Lehmann v. Wieghat, 917 S.W.2d 379, 383 (Tex. App.--Houston [14th Dist.] 1996, writ denied) (holding proper to submit to jury question of fact concerning whether plaintiff perceived accident or learned "of the accident from others after its occurrence").

Viewing the evidence and all reasonable inferences from the evidence in a light most favorable to the non-movant, as required, there is a genuine issue of material fact that the event was ongoing while Landon and Loren were present at the culvert. See Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

The Law

The majority opinion acknowledges that three intermediate courts and one federal district court have issued decisions contrary to its holding. See Lehmann, 917 S.W.2d at 383 (holding proper to submit bystander claim as question of fact to jury when evidence showed bystander did not see shooting, bystander was about one-half mile to mile away when victim was shot, shooter told bystander about having shot victim, and bystander then saw victim lying unconscious in bed of truck); City of Austin v. Davis, 693 S.W.2d 31, 32-33 (Tex. App.--Austin 1985, writ denied) (upholding bystander claim even though father did not see son's actual fall when evidence showed father arrived at hospital to visit son, found son's room empty, searched hospital, and found son's body at base of air shaft); Landreth v. Reed, 570 S.W.2d 486, 490 (Tex. App.--Texarkana 1978, no writ) (upholding bystander claim even though bystander did not see victim's entry into pool because "jury could have inferred from other evidence that only a few minutes elapsed between [victim's] entry into the pool and her discovery and the resulting resuscitative efforts"); Thornton v. Home Depot U.S.A., Inc., No. A-04-CA-1039 AWA, 2006 WL 2022920 (W.D. Tex. July 17, 2006) (unpublished order) (upholding bystander claim when bystander did not see fire actually harm her sister but saw fire and heard from others her sister was trapped inside burning house). The majority opinion, however, attempts to distinguish these decisions by claiming Logan was undisputedly deceased when the siblings got to the culvert, which I have addressed in the preceding section, and by asserting (A) the siblings did not "unwittingly" come upon the event and (B) the Keith decision compels the result. (1)

A. The Plaintiff Need Not Be "Unwitting"

To support its position that the plaintiff must "unwittingly" come upon the accident scene, the majority opinion cites to Freeman v. City of Pasadena, 744 S.W.2d 923, 924 (Tex. 1988), which states, "In our case it is undisputed that Freeman did not contemporaneously perceive the accident or otherwise experience the shock of unwittingly coming upon the accident scene." By its phrasing, the supreme court in Freeman articulated two alternatives. In one alternative, the bystander can recover if he contemporaneously perceives the accident. In the second alternative, the bystander can recover if he experiences the shock of "unwittingly" coming upon the accident scene. It is the first alternative that applies here. The siblings contemporaneously perceived the events in that they were present at the culvert while a diver conducted a search for a live person and when CPR was performed to resuscitate Logan after he surfaced.

The majority opinion creates a new rule disallowing a bystander claim in every instance in which the plaintiff knows about the existence of an event before seeing the event. This means that when family members learn of a loved one in danger, they automatically forego any right to recover as a bystander if they opt to assist their loved one while their loved one is facing danger. That, of course, was not the intention of Freeman, which recognizes that even if a bystander knowingly encounters the event, the bystander may pursue his claim if he contemporaneously perceives the occurrence. See id.

B. The Keith Decision Does Not Compel the Result

It appears the primary reason the majority opinion holds in favor of the City is a faulty reliance on a distinguishable decision by the Texas Supreme Court. See United Servs. Auto Ass'n v. Keith, 970 S.W.2d 540, 542 (Tex. 1998) (per curiam). In Keith, Keith arrived at the scene of her daughter's auto collision, where she saw the wreckage and heard her daughter making "scary noises and crying out." Id. at 541. The court determined Keith could not recover as a bystander because she did not have a "sensory and contemporaneous observance of the accident." Id. at 542. The court explained that Keith "is in the same position as any other close relative who sees and experiences the immediate aftermath of a serious injury to a loved one." Id. The court stated that the "fact that Dianna Keith arrived on the scene while rescue operations were underway and witnessed her daughter's pain and suffering at the site of the accident rather than at the hospital or some other location does not affect the analysis." Id. The court explained that "Texas law still requires the bystander's presence when the injury occurred and the contemporaneous perception of the accident." Id.

Unlike Keith,

• the Jones siblings watched the ongoing event as the divers searched for Logan, who the diver and the siblings believed could be alive in an air pocket as he was trapped in the culvert; and

• the Jones siblings were not watching the immediate aftermath of a serious injury to a loved one but were instead watching to see whether the loved one would escape injury in the ongoing event of the occurrence.

Courts have uniformly held that a loved one need not actually see the deceased take his last breath if there is an "experiential perception" of it. See Davis, 693 S.W.2d at 32-33; Landreth, 570 S.W.2d at 490; Thornton, 2006 WL 2022920 at *3. Like Landreth, the siblings were "brought so close to the reality of the accident as to render [their] experience an integral part of it." Landreth, 570 S.W.2d at 490.

The majority opinion takes too narrow a view of "contemporaneous observance of accident" by confining it to events that occur in a split second, like car collisions. Instead, when the event does not occur in a split second, courts have applied a broader view of "contemporaneous observance of accident" to include the beginning of the event, as well as the ongoing event, such as the search for a lost child, a fire, or a drowning.

Because the reasonable inference of the evidence in a light favorable to the non-movant shows that the siblings were present when Logan drowned, I respectfully dissent to the majority's affirmance of the trial court's summary judgment, which precluded a jury trial in this case.

Conclusion

I would reverse the summary judgment and remand for trial.

Elsa Alcala
Justice

1. United Servs. Auto Ass'n v. Keith, 970 S.W.2d 540, 542 (Tex. 1998) (per curiam).

Jones v. City of Houston
(Tex.App.- Houston [1st Dist.] Aug. 27, 2009)(Majority opinion by Terry Jennings) (TTCA, drowning death of child, uncovered culvert, siblings' bystander claim for wrongful death of brother rejected, drowning deaths)
Dissenting Opinion by Justice Alcala in Jones v. City of Houston (would permit children's bystander claim to go to the jury)