Leah Godfrey and Cheri Merritt v. BP Products North America

Affirmed and Memorandum Opinion filed August 25, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00857-CV

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LEAH GODFREY AND CHERI MERRITT, Appellants

V.

BP PRODUCTS NORTH AMERICA, INC., Appellee

On Appeal from the 212th District Court

Galveston County, Texas

Trial Court Cause No. 07CV0351

M E M O R A N D U M   O P I N I O N

Appellants, Leah Godfrey and Cheri Merritt, appeal from the granting of appellee, BP Products North America, Inc.=s motion for summary judgment.  We affirm.

Factual and Procedural Background

Susan Taylor was killed in the March 23, 2005 explosion at appellee=s Texas City, Texas refinery.  Taylor was the youngest sister of appellants.  Appellants were not at the refinery at the time of the explosion; they did not see the explosion; and they were not injured by the explosion.  Appellants filed suit against appellee asserting multiple causes of action they allege arose from the death of their sister. Appellants sought to recover under the Texas Wrongful Death Act.  See Tex. Civ. Prac. & Rem. Code Ann. ' 71.001 et seq (Vernon 2008).  Appellants also asserted claims for negligence, negligent hiring, supervision and/or management, and gross negligence.  Appellants also asserted a bystander claim and a claim for intentional infliction of emotional distress.  The facts were undisputed.  Appellee moved for summary judgment on each of appellants= causes of action, which the trial court granted.  This appeal followed.

Discussion

Appellants raise four issues on appeal challenging the trial court=s granting of appellee=s motion for summary judgment on each of their causes of action.  

A.      The Standard of Review

The movant for summary judgment has the burden to show there is no genuine issue of material fact and is entitled to judgment as a matter of law.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  In determining whether there is a genuine fact issue precluding summary judgment, evidence favorable to the non-movant is taken as true and the reviewing court makes all reasonable inferences and resolves all doubts in the non-movant=s favor.  Id. at 548B49.  A defendant who conclusively negates at least one of the essential elements of a plaintiff=s cause of action is entitled to summary judgment on that claim.  IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex 2004).  In determining whether there is a genuine fact issue precluding summary judgment, evidence favorable to the non-movant is taken as true and the reviewing court makes all reasonable inferences and resolves all doubts in the non-movant=s favor.  Nixon, 690 S.W.2d at 548B549.  If there is no genuine issue of material fact, summary judgment should issue as a matter of law.  Hasse v. Glazner, 62 S.W.3d 795, 797 (Tex. 2001).  We review a trial court=s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

B.      Appellants Cannot Recover for Wrongful Death

Within their first issue, appellants contend the trial court erred when it granted appellee=s motion for summary judgment on appellants= wrongful death claims.  At the same time, appellants admit that, as siblings of Taylor, they are not covered by the Wrongful Death Act and argue for a good-faith extension of the law.  See Tex. Civ. Prac. & Rem. Code Ann. ' 71.004(a) (Vernon 2008) (AAn action to recover damages as provided by this subchapter is for the exclusive benefit of the surviving spouse, children, and parents of the deceased.@).

There was no common law cause of action for wrongful death in Texas.  Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 356 (Tex. 1990).  Therefore, wrongful death causes of action owe their existence to statutes changing the common law rule.  Id.  Increasing the number of persons eligible to recover under the Wrongful Death Act is not the function of an intermediate court of appeals.  Instead, the Wrongful Death Act reflects the public policy of Texas as determined by the Texas legislature and courts must read the legislature=s words as enacted, not revise them as desired.  See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 476 (Tex. 2009) (Willet, J., concurring).  AThe wisdom or expediency of the law is the Legislature=s prerogative, not ours.@ Id. (quoting Tex. Workers= Comp. Comm=n v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995)).  We overrule appellants= first issue to the extent appellants ask this court to extend the scope of the Wrongful Death Act to include siblings as beneficiaries.

C.      Appellants Cannot Recover on Their Negligence Claims

Appellants also asserted claims for negligence and negligent hiring, supervision, and/or management.  For each, appellants do not claim they were injured themselves in the explosion, but that appellee was negligent in causing their sister=s death, which, in turn, caused their mental anguish injuries.

There is no general duty in Texas not to negligently inflict emotional distress.  Verinakis v. Medical Profiles, Inc., 987 S.W.2d 90, 94B95 (Tex. App.CHouston [14th Dist.] 1998, pet. denied) (citing Boyles v. Kerr, 855 S.W.2d 593, 594 (Tex. 1993)).  There are few situations in Texas in which a claimant who is not physically injured by the defendant=s breach of a duty may recover mental anguish damages.^[1] Id. at 95.  Here, appellants admit they were not physically injured in the explosion and that their injuries were emotional injuries arising out of their sister=s death, such as anxiety and depression, and the consequent physical manifestations arising from that emotional distress. Because appellants were not direct victims of appellee=s alleged negligence, in the absence of any other claim, they may not recover for any mental anguish caused by physical injuries to others in that accident.  See Chapa v. Traciers & Associates, Inc., 267 S.W.3d 386, 397 (Tex. App.CHouston [14th Dist.] 2008, no pet.).  We overrule the remainder of appellants= first issue addressing their negligence claims.

D.      Appellants Cannot Recover as Bystanders

In their second issue on appeal, appellants contend the trial court erred when it granted appellee=s motion for summary judgment on appellants= bystander claim.  We disagree.

A bystander claim falls within an exception to the general rule barring recovery for negligent infliction of emotional distress.  Id. at 398.  Under this legal theory, mental anguish damages are recoverable for the contemporaneous sensory perception of a serious or fatal injury to a close relative.  Id.  To recover as a bystander, a plaintiff must establish that she (1) was located near the scene of the accident, as contrasted with one who was a distance away from it; (2) suffered shock as a result of 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) was closely related to the primary victim of the accident.  United Services Automobile Association v. Keith, 970 S.W.2d 540, 541B42 (Tex. 1998).

The evidence was undisputed that appellants were not at or near the Texas City refinery at the time of the explosion.  The evidence was also undisputed that appellants did not contemporaneously perceive their sister=s injury as it happened or immediately afterward.  Finally, the evidence was undisputed that appellants learned of the explosion from others.  As appellants did not meet the first two requirements to recover on a bystander claim, the trial court did not err when it granted appellee=s motion for summary judgment on that cause of action.  See Chapa, 267 S.W.3d at 398B400.  We overrule appellants= second issue.

E.      Appellants Cannot Recover for Intentional Infliction of Emotional Distress

In their third issue, appellants challenge the trial court=s granting of appellee=s motion for summary judgment on appellants= intentional infliction of emotional distress causes of action.

To recover for intentional infliction of emotional distress, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the defendant=s conduct was extreme and outrageous; (3) the defendant=s conduct proximately caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe.  Standard Fruit and Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62, 65B66 (Tex. 1998). In addition, the intended or primary consequence of the defendant=s conduct must be to cause emotional distress, not physical injury.  Id. at 68; Durckel v. St. Joseph Hosp., 78 S.W.3d 576, 586 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  Therefore, a claim of intentional infliction of emotional distress will not lie if emotional distress is not the intended or primary consequence of the defendant=s conduct.  Durckel, 78 S.W.3d at 586.

The incident underlying appellants= intentional infliction of emotional distress causes of action was a refinery explosion. The primary risk of this incident was physical injury or death, not emotional distress.  Because the primary risk was not emotional distress, appellants cannot recover on their intentional infliction of emotional distress causes of action and the trial court did not err when it granted appellee=s motion for summary judgment on these causes of action.^[2] We overrule appellants= third issue.

F.       Appellants Cannot Recover for Gross Negligence in the Absence of Negligence

In their fourth issue, appellants contend they were injured as a result of appellee=s negligent conduct which should have precluded the trial court from granting appellee=s motion for summary judgment on their gross negligence claims.  However, we have already determined appellants= negligence claims were without merit. Therefore, since a plaintiff cannot assert a separate cause of action for gross negligence in the absence of a viable negligence claim, we hold the trial court did not err in granting appellee=s motion for summary judgment on this cause of action.  See Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 126B27 (Tex. App.CHouston [1st Dist.] 2002, pet. denied).  We overrule appellants= fourth issue on appeal.

Conclusion

Having overruled all of appellants= issues on appeal, we affirm the trial court=s summary judgment.

/s/          John S. Anderson

Justice

Panel consists of Justices Anderson, Frost, and Guzman.

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^[1]  These include intentional or malicious torts, such as libel, suits for wrongful death, and actions by bystanders who witness a close family member=s death or serious injury.  Verinakis v. Medical Profiles, Inc., 987 S.W.2d 90, 95 (Tex. App.CHouston [14th Dist.] 1998, pet. denied).  This case does not involve an intentional tort, such as libel, and we have already rejected appellants= invitation to extend the coverage of the Wrongful Death Act.  We address appellants= bystander claims in section D of this opinion.

^[2]  With respect to appellants= argument that appellee=s agreement to plead Aguilty@ to a violation of the Clean Air Act somehow Apreempts@ appellee=s right to summary judgment, appellants failed to point out any legal authority supporting this contention.  Accordingly, this argument is waived.  See Tex. R. App. P. 38.1(i).