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Healthcare Centers of Texas12/12/2002
occurrence; and (3) the bystander and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Hermann Hosp. v. Martinez, 990 S.W.2d 476, 478 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). Healthcare does not challenge the fact that Mrs. Rigby was located near the scene of the assault, that she experienced shock as a direct result of contemporaneous observance of the assault, or that Mrs. Rigby and Mrs. Underwood were closely related. Healthcare claims that Mrs. Rigby cannot recover because her mother did not suffer serious bodily injury from the attempted sexual assault. Healthcare dwells on the fact that Mrs. Underwood was not physically injured. Physical injury, however, is not required for bystander recovery.
Healthcare argues that " ost bystander cases involve contemporaneous perception by a close relative of injuries resulting in death, serious bodily injuries . . . or other permanently disabling injury." Healthcare does not cite and we have not found a case where the court required physical injury by the complainant prerequisite to recovery to recover mental anguish damages. In recognizing a bystander cause of action, the Supreme Court has found, "Before a bystander may recover, he or she must establish that the defendant has negligently inflicted serious or fatal injuries on the primary victim." Boyles v. Kerr, 855 S.W.2d 593, 598 (Tex. 1993). The Supreme Court has not recognized a requirement of physical injury.
In determining whether Mrs. Underwood suffered serious injury, we review the events Mrs. Rigby witnessed. Those events were of such a shocking and disturbing nature that mental anguish was a highly foreseeable result. As previously noted, after hearing her mother yell from down the hall, Mrs. Rigby witnessed Jones lying on top of her mother with her mother's clothing pulled up around her neck. Mrs. Rigby was forced to, with the help of a nurse, physically pull Jones off of her mother. Jones, when pulled off of Mrs. Underwood, stated, "You didn't let me get a chance to put it in yet." The very occurrence of this event establishes the emotional pain, torment, and suffering which were submitted to the jury. See Fort Worth Cab & Baggage Co. v. Salinas, 735 S.W.2d 303, 305 (Tex. App.—Fort Worth 1987, no writ) (stating that although mother did not suffer physical injury from sexual assault, children who witnessed assault could recover mental anguish damages as bystanders). Therefore, Mrs. Rigby is entitled to recover damages as a bystander.
Recovery for Pain and Mental Anguish
Healthcare next contends that Mrs. Underwood could not recover for physical pain and mental anguish because she could not cognitively experience it. Healthcare contends there is no evidence that Mrs. Underwood was aware of Jones's attack or that she could mentally contemplate any harm to herself resulting from Jones's conduct. Healthcare argues that because Mrs. Underwood did not cry, yell, scream, or thrash about that she must not have been aware of what was happening to her. To the contrary, several witnesses testified to Mrs. Underwood's demeanor before and after Jones's assault. The nurses testified that, prior to the assault, Mrs. Underwood could make moaning sounds and that she realized someone was touching her.
They also testified that after the attempted assault, she did not respond well and they could tell something was wrong with her. Louis Underwood, Mrs. Underwood's son, testified that shortly before Christmas, his mother appeared frightened. He said she seemed to want to tell him something, but was unable to express her thoughts. After the assault, Mr. Underwood testified that hi
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