St. Mary's Law Journal


Lawrence Likar


A pure negligence approach to bystander recovery imposes an undue burden upon a merely negligent defendant. Third parties, who suffer emotional distress after witnessing someone suffer an injury, lack standing to sue if they themselves suffered no physical injury. Under a pure negligence approach, however, bystanders now have a claim for negligent infliction of emotional distress. Nonetheless, this method of recovery exceeds the scope of the general principles of negligence law. For instance, a secondary reaction to a specific traumatic stimulus is not foreseeable and is heavily dependent upon an individual's prior mental conditioning. The law requires more than mere causation in determining liability. Under the general principles of negligence law, a legally protected right must be unreasonably invaded before liability exists. In Gulf C. & S.F. Ry. v. Hayter, the Texas Supreme Court recognized bystander recovery for negligently inflicted emotional distress. The Court held that bystander recovery would be allowed if the negligent act was the proximate cause of the injury and was reasonably foreseeable. In Kaufman v. Miller, the Court reemphasized that foreseeability is the determinative factor in supporting a claim for negligently inflicted emotional distress. The Court, however, has not provided a set of guidelines defining the limits of bystander recovery. Nonetheless, by allowing bystander recovery for resultant secondary reactions caused by witnessing an injury to the initial victim of a negligent act, the balance has been tipped too far in favor of the claimant and an unfair burden has been imposed upon a merely negligent defendant.


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