Air Crash at Dallas/Fort Worth Airport on Aug. 2, 1985., In re

• Citation: 856 F.2d 28
• Parties: In re AIR CRASH AT DALLAS/FORT WORTH AIRPORT ON
• Decision Date: 02 August 1985
• Court: U.S. Court of Appeals — Fifth Circuit

Page 28

856 F.2d 28

In re AIR CRASH AT DALLAS/FORT WORTH AIRPORT ON

AUGUST 2, 1985.

Robert Bruce CHRISTY, Plaintiff-Appellant, v. DELTA AIR LINES, INC., Defendant-Appellee.

Michael Thomas McGEE, as Conservator and Next Friend of Jodi

Michelle McGee and Jayme Bruce McGee, Plaintiff-Appellant, v. DELTA AIR LINES, INC., Defendant-Appellee.

Nos. 87-1855, 87-1883.

United States Court of Appeals Fifth Circuit.

Sept. 28, 1988.

Rehearing and Rehearing En Banc Denied Oct. 27, 1988.

E. Dwain Dent, Fred Streck, III, Robert Haslam, Fort Worth, Tex., for christy.

Craig A. Haynes, Dallas, Tex., for Delta Air Lines, Inc.

E. Dwain Dent, Fred Streck, III, J. Stewart Bass, Fort Worth, Tex., for McGee.

Appeals from the United States District Court for the Northern District of Texas.

Before REAVLEY, JOHNSON, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge.

In this case we are asked to prognosticate whether the State of Texas affords a cause of action on behalf of minor children for mental anguish, loss of society, and loss of familial relationship with their mother, Linda McGee Ford. Mrs. Ford tragically suffered severe and permanent brain damage as a result of the crash of Delta Airlines Flight 191 on August 2, 1985, near the Dallas/Fort Worth International Airport. We are also asked to determine whether Mrs. Ford's father may recover damages for his mental anguish and loss of society and companionship with his adult daughter. The appellant relatives were not bystanders to the crash, and Mrs. Ford did not die. After wading through the uncertain thicket of present-day Texas tort law, we conclude that no such causes of action exist. Consequently, we affirm the summary judgments granted by the district court in favor of Delta Airlines.

Ford's children and father filed separate lawsuits to recover damages arising out of the Delta 191 air crash. ¹ The father sought recovery of damages for "severe grief, mental anguish, and emotional trauma" and "loss of valuable services," as well as punitive damages. The children sought recovery of damages for lost "love, care, support, maintenance, service, and advice [and education]," "mental pain and anguish and emotional trauma," and punitive damages. The trial court, following an unbroken string of Texas intermediate appellate court precedent, granted Delta's motions for summary judgment and held that Texas law did not provide the father or children with a cause of action. ² On this consolidated appeal, the family members contend that, notwithstanding these precedents, we may read between the lines of recent Texas Supreme Court authority to conclude that Texas in fact recognizes the kinds of injuries for which they seek recovery. Mindful that we are bound to construe Texas law in the same way that its courts would if confronted with the same issues, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), we embark with a divining rod most gingerly employed.

In recent years, the Texas Supreme Court has leapt to the forefront in creating remedies for injuries heretofore not compensable by state law. Only those cases pertinent to our discussion need be mentioned here. In Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983), the court held that a parental plaintiff could recover under the Wrongful Death Statute for loss of society and companionship and damages for mental anguish for the death of a minor child. The court expanded this holding to include recovery for loss of companionship and mental anguish caused by the wrongful death of any family member covered by the statute in Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex.1985). The court subsequently eliminated the requirement of a physical manifestation of emotional anguish as a prerequisite to recovery in wrongful death actions. See Moore v. Lillebo, 722 S.W.2d 683 (Tex.1986). Most recently, in St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex.1987), the court held that proof of physical injury is no longer required to recover for the tort of negligent infliction of mental anguish. ³

None of the above cases squarely affords these appellants a cause of action. Sanchez, Cavnar, and Garrard involved wrongful death actions, and Garrard only addressed methods of proof. Appellants contend, however, that two additional state supreme court cases have the practical effect of acknowledging their causes of action. In Salinas v. Fort Worth Cab & Baggage Co., 725 S.W.2d 701 (Tex.1987), the Texas Supreme Court permitted recovery by children who were present in a taxi cab when their mother was raped. Among the items of damages affirmed by the Supreme Court was loss of familial relationship with their father who, as a result of the brutal rape, later left his family. Similarly, in Birchfield v. Texarkana Mem. Hosp., 747 S.W.2d 361 (Tex.1987), the Texas Supreme Court affirmed a damage award including elements of mental anguish suffered by parents over the blindness of their baby, who was negligently treated by the hospital in which it was born. The parents were not bystanders.

Appellants contend that these cases recognize a damage action for loss of familial relations, loss of consortium and mental anguish among non-bystander family members. Although the decisions continue the state supreme court's trend of extending liability, our analysis does not lead to that conclusion. There are factual distinctions from this case. Unlike the minor children in Salinas, Mrs. Ford's children were not bystanders to the tortious conduct. ⁴ Birchfield is partially distinguishable on the ground that the parents recovered for tortious conduct to a minor child; here, however, a parent seeks recovery for injuries to an adult child. ⁵ Most important, in neither case is there any evidence that writs were granted on the issue whether in non-wrongful death cases, relatives can recover damages from a third party for tortious interference with familial relationships. Rather, the only relevant issues discussed by the Texas Supreme Court were whether evidence of an impaired relationship existed (Salinas ) and whether parents had received a double recovery for the same injury (Birchfield ). If the state supreme court indeed decided in these cases to broaden the scope of tort liability to non-bystander relatives, it did so sub silentio and without discussing or expressly overruling the numerous recent intermediate appellate decisions to the contrary. See note 2 supra. Such silence prevents us from concluding with confidence that appellants have viable causes of action under Texas law. Absent explicit guidance from the Texas...