Landreth v. Reed

Decision Date22 August 1978
Docket NumberNo. 8563,8563
Citation570 S.W.2d 486
PartiesJ. LANDRETH and Paula Landreth, d/b/a Happy Acres Nursery, and Happy Acres Nursery, Appellants, v. James REED and Elizabeth Reed, Individually and as next friend of Melissa Reed, a minor, Appellees.
CourtTexas Court of Appeals

Howard Waldrop, Atchley, Russell, Waldrop & Hlavinka, Texarkana, for appellants.

Harry B. Friedman, Harkness, Friedman, Kusin & Hooper, Texarkana, for appellees.

CORNELIUS, Chief Justice.

While attending a day nursery operated by Mrs. Paula Landreth, fourteen month old Kecia Reed fell into the swimming pool and drowned. Her parents, Mr. and Mrs. James Reed, individually and as next friend of Kecia's infant sister, Melissa, filed suit against Mr. and Mrs. Landreth for damages. Based upon jury findings of negligence, proximate cause and damages, the district court entered judgment against Mr. and Mrs. Landreth awarding Mr. and Mrs. Reed $25,000.00 for their loss, together with $2,940.00 for funeral and medical expenses, the estate of Kecia $65,000.00 for the conscious pain and suffering she experienced, and Melissa the sum of $25,000.00 for injuries she received as a result of witnessing the death of her sister. Mr. and Mrs. Landreth do not contest the jury findings of negligence or proximate cause, but base their appeal upon ten points of error which complain of the action of the district court in allowing a non-medical expert witness to testify that Melissa suffered a physical injury, the propriety of Melissa's recovery of damages for having witnessed the death, several alleged acts of jury misconduct, and the excessiveness of the awards for pain and suffering and for pecuniary loss on the part of the child's parents.

I

Mr. and Mrs. Reed produced Dr. Brunell, a clinical psychologist, as a witness to the fact that Melissa had suffered a physical injury as a result of the shock and emotional trauma of having witnessed the efforts to revive Kecia immediately after she was removed from the pool. The gist of Dr. Brunell's testimony was that, in addition to and as a result of the emotional trauma, Melissa experienced hyperactivity, distractability, loss of weight, extreme nervousness and difficulty in sleeping. Mr. and Mrs. Landreth contend that because Dr. Brunell was not a medical doctor, she should have been permitted to testify only as to Melissa's mental condition, and not that such condition manifested itself by physical symptoms or disability.

We think the court was correct in allowing Dr. Brunell's testimony. As a trained expert in behavioral psychology, qualified both by a Ph.D. in Clinical Psychology and several years of experience, she was undoubtedly competent to testify as to Melissa's mental condition and stability. Hogan v. State, 496 S.W.2d 594 (Tex.Crim.App.1973); Doherty v. Dean, 337 S.W.2d 153 (Tex.Civ.App. Austin 1960, no writ); Watson v. State, 161 Tex.Cr.R. 5, 273 S.W.2d 879 (1954). And it has been increasingly evident in recent years that in many cases it is difficult, if not impossible, to distinguish between strictly mental and strictly physical ailments, because they each may manifest themselves by symptoms relating to the other. In this case Dr. Brunell did not attempt to testify concerning infectious or idiopathic physical diseases, but only that Melissa's physical symptoms, which even an observant layman would be permitted to relate, were common results in a child her age, from the kind of mental and emotional shock she experienced. To prohibit a trained clinical psychologist from so testifying would be to ignore the realities of present medical and psychological practice. See Simmons v. Mullen, 231 Pa.Super. 199, 331 A.2d 892 (1974).

II

Melissa's recovery is challenged on the ground that, as she neither received a physical impact as a result of the negligent act, nor was she in the zone of danger created by that act, the allowance of recovery for injuries resulting from her shock would be to extend the liability for one's negligent act beyond reasonable and permissible limits. The problem of whether to allow recovery of damages by one who witnesses the negligent injury of another person has confronted and perplexed the courts for decades. Yet, in our own jurisdiction, there is a surprising paucity of cases which have directly considered it. Nationwide, the courts have expressed several views. Some deny any recovery for emotional trauma in such cases. Others permit a recovery only if the claimant sustained a physical impact. Still others have ruled that physical impact is not necessary if the plaintiff was in the zone of danger. Finally, some have held that artificial distinctions such as those noted above should be disregarded and each case should be determined upon the traditional concepts of negligence and proximate cause based upon reasonable foreseeability. See Annot., 29 A.L.R.3d 1337 (1970); Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968). Although the exact question has not been definitely answered by a decision of our own courts, it appears that Texas will follow the modern rule, and will disregard the artificial distinctions in favor of a decision based upon those traditional concepts. See Kaufman v. Miller, 414 S.W.2d 164 (Tex.1967); Hill v. Kimball, 76 Tex. 210, 13 S.W. 59 (1890); Dave Snelling Lincoln-Mercury v. Simon, 508 S.W.2d 923 (Tex.Civ.App. Houston-1st Dist. 1974, no writ); Comments, Negligent Infliction Of Emotional Harm To Bystanders-Should Recovery Be Denied ?, 7 St. Mary's Law Journal 560 (1975).

It is generally agreed that in determining foreseeability in this type of case, several facts will be relevant: (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 a 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 were closely related. See Dave Snelling Lincoln-Mercury v. Simon, supra; Dillon v. Legg, supra. Our Supreme Court has noted other factors which will bear upon the issue of foreseeability, but none of them is present here. See Kaufman v. Miller, supra.

Without question, the first relevant fact was established in this case. Melissa was present every day, including the day of the drowning, with Kecia at the day nursery. The nursery occupied a relatively small area and the pool was located immediately adjacent to the playground areas as well as the buildings. Concerning the second fact, the evidence is uncertain as to whether Melissa saw Kecia in the pool, but it is clear that she was present in the room when Kecia was brought from the pool and was there for at least some time while "mouth to mouth" and "arm lift" procedures were used in an effort to resuscitate her. The jury could have inferred from other evidence that only a few minutes elapsed between Kecia's entry into the pool and her discovery and the resulting resuscitative efforts. In the modern view, actual observance of the accident is not required if there is otherwise an experiential perception of it, as distinguished from a learning of it from others after its occurrence. Compare, Krouse v. Graham, 19 Cal.3d 59, 137 Cal.Rptr. 863, 562 P.2d 1002 (1977); Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1969). In the special circumstances of this case, we conclude that there was such a perception on the part of Melissa. In seeing Kecia brought from the pool in an emergency situation fraught with life or death drama, together with the traumatic shock of witnessing the desperate but unsuccessful attempts to save Kecia's life, Melissa was brought so close to the reality of the accident as to render her experience an integral part of it. Such an experience is far different from the case where one seeks damages for his grief or agony at merely seeing the dead body of a loved one, or upon learning of the death from others after its occurrence. We also find that the third fact was established here. Although most of the cases dealing with this type of injury involve shock to parents, at least two cases have recognized the right of a sister to recover, assuming that the other elements of foreseeability are present. Dillon v. Legg, supra; Hopper v. United States, 244 F.Supp. 314 (D.C.Colo.1965). Foreseeability in this case is strengthened by the undisputed evidence that Kecia and Melissa attended the day nursery together and were virtually inseparable, which facts were obviously well known to Mrs. Landreth. In light of the foregoing, we conclude that the jury's award of damages to Melissa, based upon the concepts of proximate cause and foreseeability, is supported by the evidence.

III

It is next asserted that the district court should have granted a new trial because of the individual or cumulative effect of the jury's acts in (1) rendering a quotient verdict; (2) failing to follow the court's instructions in answering the issues; (3) considering a personal experience of one of the jurors; (4) discussing insurance; and (5) discussing attorney's fees.

Grounds one and two will be discussed together. The essence of these complaints is that the jury agreed in advance to a quotient verdict; or, if there was no binding agreement, a "guideline" figure was agreed upon for the total damages, whereupon the jurors simply divided that figure and allotted arbitrary portions of it to the various damage issues without regard to the evidence on those issues. If either of these procedures was used, misconduct occurred. A quotient verdict is where the jurors agree to be bound by a figure determined by adding the sums they individually think proper and dividing that total by the number of jurors. 3 McDonald's Texas Civil Practice, Sec. 14.13, p. 568. Even if there is no agreement to be bound, which is an essential element of a quotient verdict, the acceptance by the jurors...

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