Hinojosa v. South Texas Drilling & Exploration, Inc.

• Court: Texas Court of Appeals
• Writing for the Court: CANTU
• Citation: Hinojosa v. South Texas Drilling & Exploration, Inc., 727 S.W.2d 320 (Tex. App. 1987)
• Decision Date: 27 February 1987
• Docket Number: No. 04-86-00179-CV,04-86-00179-CV
• Parties: Ruben HINOJOSA, Appellant, v. SOUTH TEXAS DRILLING & EXPLORATION, INC. and John Darrell Riley, Appellees.

Page 320

727 S.W.2d 320

Ruben HINOJOSA, Appellant, v. SOUTH TEXAS DRILLING & EXPLORATION, INC. and John Darrell Riley, Appellees.

No. 04-86-00179-CV.

Court of Appeals of Texas San Antonio.

Feb. 27, 1987.

Ramon Garcia, Edinburg, for appellant.

Robert R. Biechlin, Jr., Don E. Weiss, San Antonio, for appellees.

Before ESQUIVEL, CANTU and DIAL, JJ.

OPINION

CANTU, Justice.

This is an appeal from a summary judgment in favor of the appellees, John Darrell Riley and his employer, South Texas Drilling & Exploration, Inc. Appellant, Ruben Hinojosa brought suit and alleged that he had suffered severe psychological and mental impairment as a result of hearing his co-worker, Santiago Galvan, fall to his death from an oil rig on January 24, 1982, and then observing Galvan's body where it landed in close proximity to where he was working.

Appellant and Galvan were employed by Air Equipment Rental Inc., which in turn was hired by South Texas Drilling to run the casing of an oil drilling rig in Zapata County, Texas. According to appellant, Riley negligently operated the traveling block on the oil rig before the other crew members were ready. Such action, allegedly, caused Galvan to slip off a platform and fall to his death.

Appellant sued Riley and South Texas Drilling, alleging that Riley's negligence occurred during the course and scope of his employment with South Texas Drilling. Appellees filed a Motion for Summary Judgment. Based upon the deemed responses to their Request for Admissions, appellees argued that appellant had failed to demonstrate that a familial relationship existed between him and Galvan. Appellees further argued that because appellant was not physically injured nor struck by any object, he had no cause of action under the Texas Wrongful Death Statute, TEX.REV.CIV.STAT.ANN. art. 4675 (Vernon Pamp.1986). ¹

Appellees also argued in their motion that appellant was not entitled to recover for negligent infliction of emotional distress as a bystander because he was not closely related to Galvan.

In his response to the motion for summary judgment, appellant argued that his cause of action was "based on a theory of gross negligence and the wrongful infliction of mental anguish leading to his neurosis with its attendant physical manifestations." He further argued that his neurosis is a compensable physical injury. Appellant maintains that the action was not brought pursuant to the wrongful death statute, which he concedes did not provide him a cause of action, but rather that it arises out of common law negligence.

In Landreth v. Reed, 570 S.W.2d 486 (Tex.Civ.App.--Texarkana 1978, no writ) the court adopted the three-prong test set out in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968) for foreseeability in cases involving the negligent infliction of emotional distress to bystanders. The relevant factors are:

1. Whether the plaintiff was located near the scene of the accident;

2. Whether the shock resulted from a direct emotional impact upon the plaintiff from the contemporaneous perception of the accident, as distinguished from learning of the accident from others after its occurrence; and

3. Whether the plaintiff and the victim are closely related.

Landreth, supra at 489. It is the third prong of this test which is before us for consideration. Appellant bears no familial relationship to Galvan and alleges a relationship only as a co-worker and "close friend."

Initially we note that the California Supreme Court in Dillon v. Legg, supra, set out the third prong of the test of foreseeability as "whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship." The Court further stated:

The evaluation of these factors will indicate the degree of the defendant's foreseeability: obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so ... All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends on each case. (Emphasis in original).

Id. at 739, 69 Cal.Rptr. at 80, 441 P.2d at 920.

Appellee argues that appellant lacks a familial relationship with Galvan and so is unable to satisfy the third element of the Dillon test. Appellant, however, replies that his action is based upon common law negligence, which requires only proof of negligence, duty, proximate cause and damages to support a recovery.

Appellant cites us to the case of Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890) in support of his contention. In Hill the plaintiff suffered a miscarriage after she was frightened by seeing two of her unrelated servants severely beaten by a neighbor. The court determined that the neighbor was aware that the plaintiff was present and pregnant. The cause was remanded to be tried on a negligence theory. The court pointed out that a fact question existed whether a reasonably prudent man would have anticipated the danger to plaintiff. Thus, whether the injury was foreseeable was not determined.

Clearly Texas has adopted the Dillon test in determining the foreseeability of damages to bystanders who are not themselves physically injured by another's negligence. See Landreth v. Reed, supra. See also, Genzer v. City of Mission, 666 S.W.2d 116 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.); Apache Ready Mix Co. Inc. v. Creed, 653 S.W.2d 79 (Tex.App.--San Antonio 1983, writ dism'd); General Motors Corp. v. Grizzle, 642 S.W.2d 837 (Tex.App.--Waco 1982, writ dism'd); Bedgood v. Madalin, 589 S.W.2d 797 (Tex.Civ.App.--Corpus Christi 1979), reversed other grounds, 600 S.W.2d 773 (Tex.1980); Covington v. Estate of Foster, 584 S.W.2d 726 (Tex.Civ.App.--Waco 1979, writ ref'd n.r.e.). However, in all these cases the close relationship prong was satisfied in that the victim and plaintiff were family members.

Recently, in Hastie v. Rodriquez, 716 S.W.2d 675 (Tex.App.--Corpus Christi 1986, writ ref'd n.r.e.) the plaintiff alleged that she was the common law wife of the deceased victim. A jury found that a common law marriage was not established. Therefore, although the plaintiff and victim had lived together for over five years the court held:

Absent the bond of familial relationship, appellant cannot recover damages for mental anguish under 'bystander recovery.'

The other jurisdictions addressing the close relationship element are divided. In Elden v. Sheldon, 164 Cal.App.3d 745, 210 Cal.Rptr. 755 (Cal.Ct.App.1985), the victim's unmarried cohabitant was denied recovery for the negligent infliction of emotional distress. The court found that a close relationship under Dillon does not include friends, housemates, or those engaged in "a meaningful relationship." The close relationship guideline was construed to require "at least a relationship which is legally cognizable." The court stated:

Any other interpretation would result in an indefinite extension of liability for negligent infliction of emotional distress to every conceivable type of relationship. Neither law nor logic would countenance such a result.... Not every loss can be made compensable in money damages, and legal causation must terminate at some point.

Id. 210 Cal.Rptr. at 760.

A similar result was reached in Drew v. Drake, 110 Cal.App.3d 555, 168 Cal.Rptr. 65 (1980). The plaintiff had lived with the victim for three years. The court found:

Emotional distress to a spouse or a parent witnessing an injury to spouse or child meets the Dillon test because it is reasonably foreseeable that a person standing in such close relationship to the injured person may be present and suffer intense distress. No reported decision extends the 'close relationship' guideline to include friends or housemates ... To allow persons standing in a 'meaningful relationship' (to use a contemporary colloquialism) to recover for emotional distress resulting in physical injury would abandon the Dillon requirement that '[t]he courts ... mark out the areas of liability, excluding the remote and unexpected.'

Id. at 557, 168 Cal.Rptr. at 65-66.

However, in Ledger v. Tippitt, 164 Cal.App.3d 625, 210 Cal.Rptr. 814 (Cal.Ct.App.1985) the plaintiff, who had tried to marry the victim twice, had lived with the victim for two years, bore the victim's child and lived with the victim and their child as a family, was permitted to recover for mental anguish suffered when the victim was stabbed in her presence and bled to death in her arms. The court held that it was foreseeable as a matter of law that "the woman a few feet distant ... was likely a loved one who would suffer extreme emotional distress when [the victim] died in her arms." Id. at 646, 210 Cal.Rptr. at 826.

The Ledger court disagreed with the Drew court, finding that Drew rewrote the close relationship standard of Dillon to require a formal marriage license. The court also distinguished Drew by recognizing that the plaintiff in Ledger had attempted to marry the decedent, had had his child, and was economically dependent on him. It also gave great weight to the "appalling facts" of the assault and death in her arms. Id. at 648, 210 Cal.Rptr. at 827.

Similarily, in Mobaldi v. Board of Regents of the University of California, 55 Cal.App.3d 573, 127 Cal.Rptr. 720 (Cal.Ct.App.1976), disapproved on other grounds, Baxter v. Superior Court, 19 Cal.3d 461, 138 Cal.Rptr. 315, 563 P.2d 871 (1977), plaintiff, the victim's foster mother, was permitted to recover for her emotional distress after observing hospital personnel negligently administer a fatal dose of medication to the child. The court determined that although there was no biological relationship the emotional bond between the plaintiff and victim possessed all the incidents of a parent/child relationship. The court also found that the hospital officials treated the victim and plaintiff as mother and...