WPCG5 2~ ZBVXXN\  PXPa1DocumentDocument StyleF *  ׃  a2DocumentDocument Style*    a3DocumentDocument Style0     2Zpe epa4DocumentDocument Style . a5DocumentDocument Style   a6DocumentDocument Style   a7DocumentDocument Style ` ` ` 2p   Ha8DocumentDocument Style` ` ` a1TechnicalTechnical Document Style 4!     a2TechnicalTechnical Document Style *    a3TechnicalTechnical Document Style '    2/  'a4TechnicalTechnical Document Style &    a5TechnicalTechnical Document Style &  . a6TechnicalTechnical Document Style&  . a7TechnicalTechnical Document Style&  . 2 a  w  a8TechnicalTechnical Document Style&   . a1Right ParRight-Aligned Paragraph Numbers8!"@   a2Right ParRight-Aligned Paragraph NumbersA#$@` `  ` ` ` a3Right ParRight-Aligned Paragraph NumbersJ%&@  ` `  2  K  a4Right ParRight-Aligned Paragraph NumbersS'(@  a5Right ParRight-Aligned Paragraph Numbers\)*@hh# hhh a6Right ParRight-Aligned Paragraph Numberse+,@( hh# a7Right ParRight-Aligned Paragraph Numbersn-.@- ( 2T>a8Right ParRight-Aligned Paragraph Numbersw/0@pp2 -ppp     X0Í Í X0Í Í Roman 12ptRoman Courier 12pt'12#d6X@@#Op. DraftOpinion -- Draft34  (c#j\  P6;XPH#   3 1, 4 @&D R A F T` APage  _______________________________________________________ 2njItalic 12ptItalics Courier 12pt type'56'#x6NhH##x6NhH#BibliogrphyBibliography78 Doc InitInitialize Document Style9:    I. 1. A. a.(1)(a) i) a)DocumentҲTech InitInitialize Technical Style;< 1 .1 .1 .1 .1 .1 .1 .1 Technical2H 3!"_PleadingHeader for numbered pleading paper=>   ,#j\  P6;XPH# X  y*dddyy*dddy H\1 H\2 H\3 H\4 H\5 H\6 H\7 H\8 H\9 H10 H11 H12 H13 H14 H15 H16 H17 H18 H19 H20 H21 H22 H23 H24 H25 H26 H27 H28   Home PtrSets codes for printing opinions on Sperry Laser Q?@ X #Xx6X@X@#  EnvelopeEnvelope!AB '3 II    Xp,  p,p, Letter 2Personal stationery with standard margins"bCD#XN\  PXP#   p,  3 1, 4 2#K$%p&pLetter 3Personal stationery with narrow margins#bEF#&R2P&P#     3 1, 4 Letter 1Court stationery$PGH#XZ2P XP# * 3 1, 4 ؃ Single Space% I J1Document Style&KL` ` ` 2!'q(e0 )e * 2Document Style'M N . 3Document Style( OP 4Document Style) QR 5Document Style**ST   2#+p!,/"-".\#6Document Style+UV` ` ` 7Right-Aligned Paragraph Numbers,8WX@   8Right-Aligned Paragraph Numbers-AYZ@` `  ` ` ` 9Document Style.0[ \    2&/#$0$1t%2*&10Right-Aligned Paragraph Numbers/J]^@  ` `  11Right-Aligned Paragraph Numbers0S_`@  12Right-Aligned Paragraph Numbers1\ab@hh# hhh 13Right-Aligned Paragraph Numbers2ecd@( hh# 2)3'4'5(6n)14Right-Aligned Paragraph Numbers3nef@- ( 15Right-Aligned Paragraph Numbers4wgh@pp2 -ppp 16Document Style5Fij *  ׃  17Technical Document Style6&kl  . 2o,7%*8*9F+:+18Technical Document Style7&mn  . 19Technical Document Style8*op    20Technical Document Style9'qr   21Technical Document Style:&st   2 5;,<Q-=-0[.22Technical Document Style;4u$v     23Technical Document Style<&wx  . 24Technical Document Style=&yz  . īXN\  PXPx9 Z6Times New Roman RegularXd6X@@<6X9`("Courier NewTTj\  P6;XPH%\  `$Times New RomanXx6NhHH  9`(.Courier NewItalicTTx6NhHH  9`(.Courier NewItalicTTj\  P6;XPH%\  `$Times New RomanXXx6X@X@<6X9`("Courier NewTTXXN\  PXP% [  `*Times New RomanTTX&R2P&P7|A`$ArialTT&XZ2P XP& A`ArialTTX2=5E53|x  IN THE SUPREME COURT OF TEXAS ă & &No. 970871ă & United Services Automobile Association, Petitioner  *v.ă Dianna Keith, Respondent    On Petition for Review from the Court of Appeals for the Third District of Texasă  f% PER CURIAM ă In these crossappeals, the court of appeals described this case as one in which it explore[d] the outer boundaries of the bystander cause of action in Texas. 953 S.W.2d 365. Because the court of appeals exceeded those boundaries when it held that a cause of action may exist under the facts presented here, we reverse the judgment of the court of appeals and render judgment for United States Automobile Association (USAA). The facts are not in dispute. Dianna Keiths daughter, Lyndsay Keith, was a passenger in a car that swerved out of control and hit a tree. The owner of the vehicle was uninsured or underinsured. The accident occurred approximately one block from the Keith residence where Dianna Keith was asleep at the time of the crash. Shortly after the accident, Adam Hahn, a friend of Lyndsays who had been following the car in which she was a passenger, drove to the Keith residence and awoke Dianna Keith. From the summary judgment evidence, it appears that Hahn was in shock and was only able to tell her that his urgency had something to do with Lyndsay. Hahn rushed Dianna Keith to the accident scene, where the wrecked car was still smoking and a taillight was blinking. Keith could not see her daughter, but she could hear her inside the wreckage making scary noises and crying out. After Lyndsay was removed from the car, Dianna Keith accompanied her daughter in the ambulance to a location where a helicopter took Lyndsay to the hospital. Keith later arrived at the hospital and waited while her daughter was in the operating room. She was informed around 3:20 a.m. that Lyndsay had died. Dianna Keith was insured by USAA. She presented claims under her uninsured/underinsured motorist policy as the representative of Lyndsays estate, as a beneficiary under the Texas Wrongful Death Statute, and for her own injuries as a bystander. USAA settled the estates claims for $20,000 but denied Dianna Keiths bystander recovery claim. Keith filed suit on a bystander theory of recovery and elected not to pursue her wrongful death claim. Both parties moved for summary judgment. The trial court granted summary judgment for Dianna Keith, but the court of appeals reversed and remanded, concluding that there was a fact issue. Each party filed a petition for review in this Court. Texas has adopted the bystander elements that the California Supreme Court identified in Dillon v. Legg, 441 P.2d 912, 920 (Cal. 1968). See Freeman v. City of Pasadena, 744 S.W.2d 923, 92324 (Tex. 1988); see also Edinburg Hosp. Auth. v. Trevi9o, 941 S.W.2d 76, 80 (Tex. 1997); Boyles v. Kerr, 855 S.W.2d 593, 59798 (Tex. 1993); Reagan v. Vaughn, 804 S.W.2d 463, 467 (Tex. 1990). To recover as a bystander, a plaintiff is required to establish that: (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. See Freeman, 744 S.W.2d at 92324. The court of appeals correctly recognized that the existence of a bystander cause of action depends on whether the plaintiff can prove these three elements. However, the court of appeals erroneously concluded that although there was little dispute concerning the operative facts . . ., the ultimate issue of whether Mrs. Keith had a contemporaneous perception of the accident is in and of itself a material fact issue in dispute. 953 S.W.2d at 368. The bystander elements are flexible and should be applied on a casebycase basis. Freeman, 744 S.W.2d at 924. But, when the material facts are undisputed, as they are here, whether the plaintiff is entitled to recover as a bystander is a question of law. Id. at 923. The facts of this case are similar to those in Freeman. John Freeman sued the City of Pasadena for mental anguish damages he allegedly suffered because of an automobile accident involving two of his stepsons. Id. Freeman was at home when the accident occurred. An unidentified person rang the front doorbell and informed Freeman of the accident. Freeman rushed to the scene where he observed the wrecked automobile and saw one of his stepsons covered with blood and lying on a stretcher. Id. Based on the undisputed facts, we concluded that Freeman did not contemporaneously perceive the accident, and therefore, we declined to allow a bystander cause of action. Id. at 92324.Like Freeman, the undisputed facts in this case show that Dianna Keith was not at the scene when the accident occurred. She did not see or hear the crash. The emotional impact that she undoubtedly suffered did not result from a sensory and contemporaneous observance of the accident. In this regard, Dianna Keith is in the same position as any other close relative who sees and experiences the immediate aftermath of a serious injury to a loved one. For example, we have not recognized bystander recovery simply because a relative arrived on the scene in time to see an injured loved one placed in an ambulance. See Freeman, 744 S.W.2d at 923. The fact that Dianna Keith arrived on the scene while rescue operations were underway and witnessed her daughters pain and suffering at the site of the accident rather than at the hospital or some other location does not affect the analysis. Although we have not insisted that a bystander must be within a zone of danger to recover, Texas law still requires the bystanders presence when the injury occurred and the contemporaneous perception of the accident. See id. at 923. Accordingly, without hearing oral argument, the Court grants both USAAs and Dianna Keiths petitions for review, reverses the judgment of the court of appeals, and renders judgment that Keith take nothing on her bystander claim. Tex. R. App. P. 59.1.  OPINION DELIVERED: June 5, 1998