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Healthcare Centers of Texas12/12/2002
endant "because of the criminal act of another." See Tex. Civ. Prac. & Rem. Code § 41.005(a). No one disputes that Jones committed a criminal act.
Pointing to the jury charge and the judgment, Rigby asserts her award was for the criminal acts of Healthcare, not the criminal acts of another. Her able counsel have provided us with statements by a sponsor of the statute and a lobbyist suggesting they did not read the statute to apply to concurrent criminal acts (that is, when there are criminal acts by both the defendant and another). Such statements do not constitute legislative history. See General Chemical Corp. v. De La Lastra, 852 S.W.2d 916, 923 (Tex. 1993). Nor can they justify rewriting the statute. See Texas Dept. of Public Safety v. Kreipe, 29 S.W.3d 334, 338 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
The second section of this statute contains several exceptions, one of which allows punitive damages if "the defendant is criminally responsible as a party to the criminal act" of another. See Tex. Civ. Prac. & Rem. Code § 41.005(b)(2). In other words, punitive damages are expressly allowed against an accomplice. But an accomplice is guilty of his own crime. See Tex. Pen. Code § 7.01. If Rigby's interpretation is correct, this exception is completely superfluous—accomplices have committed their own concurrent crime, and would never be covered by a statute applying to defendants sued for the criminal act of another. We must construe this statute as a whole, giving each provision effect. Tex. Gov't Code § 311.021(2); Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001). By creating an express exception for concurrent acts by accomplices, the Legislature obviously did not share Rigby's interpretation that the statute had no application to concurrent criminal acts at all.
Finally, a note of caution should accompany the Court's affirmation of bystander damages for Virginia Rigby. Bystander recovery is a species of negligent infliction of emotional distress, an action generally not recognized in Texas. See Boyles v. Kerr, 855 S.W.2d 593, 595-96 (Tex. 1993) (holding mental anguish damages compensable only in connection with a breach of some other duty imposed by law). It is not available in medical malpractice cases. See Edinburg Hosp. Authority v. Trevino, 941 S.W.2d 76, 81 (Tex. 1997). I agree with the Court this is not a medical malpractice case, as the propriety of failing to supervise a sexual deviant in a nursing home is within the common knowledge of laymen. See Golden Villa Nursing Home, Inc. v. Smith, 674 S.W.2d 343, 349 (Tex. App.—Houston [14th Dist.] 1984, writ ref'd n.r.e.) (holding propriety of failing to supervise patient who wandered off from nursing home did not require expert testimony). But it is not at all clear that bystander recovery should be extended to a fact situation like this one.
Bystander damages can be recovered by a family member who is located near the scene of and directly perceives an accident. Boyles, 855 S.W.2d at 598. But as the use of the word "accident" implies, bystander recovery has been allowed in Texas almost exclusively in auto accident cases. It is one thing to expect a driver to know that running over a person may cause severe shock to family members standing by; it is quite another to expect a nursing home administrator to know that admitting a sexual deviant may cause severe shock to family members who stand by while he commits deviant acts upon their loved ones.
Nevertheless, Healthcare's appeal includes no argument that a bystander cause of action does not exist in this situation. Thus, it has waived any error. See Tex. R. App. P. 38.1.
Scott Brister Chief
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