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Lions Eye Bank of Texas v. Perry9/6/2001
lt of a breach of a duty arising out of a special relationship with the Eye Bank. The Perrys' claim is based solely in negligence, and the Perrys were strangers as to the Eye Bank. Whatever the nature of the relationship between the Perrys and Eye Bank was, it did not rise to the level of a special relationship. Because none of the theories put forth by the Perrys establish a special relationship with the Eye Bank justifying the mental anguish damages awarded by the jury, we will examine the second argument proffered by the Perrys to support the mental anguish damage awards.
B. Bystander
The Perrys also contend they can recover mental anguish damages as bystanders. We disagree. Bystanders may recover mental anguish damages suffered as a result of witnessing a serious or fatal accident involving a close family member. Likes, 962 S.W.2d at 496; Boyles, 855 S.W.2d at 597. To recover as a bystander, the plaintiff must establish:
(1) The plaintiff was located near the scene of the accident, as contrasted with one who was a distance away from it;
(2) The plaintiff suffered shock as a result of a direct emotional impact upon the plaintiff from a sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and
(3) The plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. United Servs. Auto. Ass'n v. Keith, 970 S.W.2d 540, 541-42 (Tex. 1998) (per curiam).
Texas law requires the bystander's presence when the injury occurred and the contemporaneous perception of the accident. Id. at 542. None of the Perrys observed the removal of Levi's eyes. We find the bystander theory of recovery is inapplicable to the facts of this case. The Perrys did not witness an accident. Instead, they witnessed Angela Perry's discovery that Levi's eyes were not in his eye sockets, and are ineligible for mental anguish damages as bystanders.
III. DAMAGES
The Perrys have not established that they can recover mental anguish damages under any theory for the Eye Bank's alleged negligence in removing Levi's eyes without their consent. We, therefore, sustain this issue, and reverse the actual damages awarded the Perrys based on the Eye Bank's alleged negligence. Moreover, absent an award of actual damages from a tort, punitive damages are not available. Twin City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 665 (Tex. 1995) (stating actual damages sustained from a tort must be proven before punitive damages are available). Texas cases unanimously hold that recovery of actual damages is a prerequisite to receipt of exemplary damages. Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 754 (Tex. 1984). Because the Perrys are not entitled to actual damages, they may not recover exemplary damages. Accordingly, we must also reverse the award of exemplary damages.
IV. CONCLUSION
We hold the Perrys cannot recover any damages from the Eye Bank. Thus, we need not address Eye Bank's remaining issues. Accordingly, we reverse the judgment of the trial court and render judgment that the Perrys take nothing on their claims against the Eye Bank.
Publish -- TEX. R. APP. P. 47.3(b).
Page 1 2 3 4 Texas Personal Injury Attorneys
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