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Can I recover for negligent infliction of emotional distress?

Assume that you witness a fatal accident involving a car and truck, in which a loved one of yours was seriously injured in the car. You were not injured physically, but watching your loved one suffer had a shattering emotional impact on you. Even though you were not involved in the accident, and even though you suffered no physical injuries, can you still sue the person who caused the accident for negligent infliction of emotional distress?

 

Texas courts as a general rule tend to be more restrictive than in many other states when it comes to awarding damages for negligent infliction of emotional distress. They do not, for example, favor awarding such damages in connection with claims arising out of damage to the plaintiff's property. But this restriction does not apply in situations such as a situation in which a bystander witnesses a serious or fatal accident.

To prove your case for negligent infliction of emotional distress as a bystander, you will need to show the following:

  1. That you were located near the scene of the accident;
  2. That the emotional shock that you endured came from a direct emotional impact as a result of your contemporaneous and sensory observance of the accident (that is, you need to have seen and/or heard the accident when it happened instead of learning about it from others later); and
  3. You need to have had a close relationship with the primary accident victim (for example, the person whose accident and suffering you witnessed was a family member).

If you can show the existence of these three elements, then even though Texas courts tend to frown upon negligent infliction of emotional distress damages generally, you can possibly prevail in a cause of action based on this legal theory. A personal injury attorney familiar with how Texas courts apply personal injury law will be able to help you to determine if you have a cause of action of this nature if you witness a loved one being injured in a serious accident.

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