Alan sues Denny for the emotional distress he suffered when he witnessed an accident in which Denny's car careened into his parents' car. The action was brought in federal court in the state of Texas, which applies the "impact rule" to claims for negligent infliction of emotional distress. Under the impact rule, a plaintiff can only recover for emotional distress if she suffered a physical impact in the accident caused by the defendant. Mere "bystanders" cannot recover. Always was not in his parents' car at the time of the accident. He was waving goodbye to them from the curb, where they had just dropped him off. He claims, however, that Denny's car, when it careened into his parents' car, threw water on his leg, and that satisfies the impact rule. Denny denies that his car threw water on Alan. He also denies that water splashing is sufficient to satisfy the impact rule under Texas law; the impact, Denny argues, must be with the defendant's car itself. He answers the complaint, denying that his car splashed Alan, and then moves to dismiss it for failure to state a claim upon which relief can be granted. Should the trial judge deny the motion