*1 452 judgment
judgment is reversed or rendered until the was set aside.4 grant summary rulings
Therefore, made the trial court’s the plaintiffs DocuSign, judgment between Inc., are conclusive as concerning Levy arguments the same theories made here and the judicata.5 against Levy res are barred Adams, Judgment Smith, J., J., P. concur. affirmed. 16, 201 Decided November 2010. denied December Reconsideration Ryan appellants. Martin, Kurtz, for & A. Miller Stephen Mooney, Weinberg, Hudgins, Dial, Wheeler, & W. Gunn Margaret appellees. Fernandez, A. v. BRUSCATO O’BRIEN.
A10A1230. (705 275) SE2d Judge. Ellington, guardian capacity of Victor Bruscato, in his as the J. Vito Superior appeals of DeKalb order of the Court Bruscato, summary judgment County, granted to Victor Bruscato’s which malprac- psychiatrist, O’Brien, M.D., this medical Derek Johnson malpractice superior concluded that Bruscato’s tice case.1 court “impact application rule” claims were barred either following public policy grounds. reasons, For the we reverse. summary prevail judgment under OCGA To moving party there is 9-11-56, must demonstrate that undisputed genuine no of material fact issue nonmoving light facts, party, in the most favorable to viewed appeal judgment On of a as matter law. warrant OCGA 9-12-40. 505) (1) (690 Assn., Community App. v. Lakemont 302 Ga. Laosebikan 312) (1999). Harris, (2010), citing Hooper appearance Judge “[t]his is of this case notes in dissent that the second Andrews — to, however, brought by who was a suit Vito Bruscato before The case the dissent refers us.” — against party plaintiff in O’Brien and the Gwinnett- interest this case is not the real Board, wrongful County, Community death of in Gwinnett Rockdale-Newton Service grant summary judgment no case for reasons that have in that Vito’s wife. We affirmed entirely suit, plaintiff arguing brought application a different to the instant which Bd., Community theory recovery. Svc. See Bruscato Gwinnett-Rockdale-Newton different (2008). *2 grant summary judgment, this Court reviews the evi- genuine dence de novo to determine whether a issue material fact exists or whether movant entitled to judgment as a matter of law. (Citations omitted.) Boggs Bosley Institute, Med. (1997). following. began viewed,
So the record reveals the O’Brien treating 38-year-old, mentally patient Bruscato, Victor a then ill history January violence, a 2001. O’Brien reviewed Bruscato’s records, treatment which revealed that Bruscato’s mental illness diagnosed manifested childhood that had and he been over the organic retardation, disorder, course of his life with mental mood pervasive developmental schizophrenia, nonspecified psy- disorder, a pedophilia, explosive disorder,
chotic and intermittent disorder. expressed thoughts parents, Bruscato had he had homicidal toward his physically including hospital others, assaulted them and employee young girl. experienced auditory He had also people girls. him hallucinations that commanded to kill or to molest began treating Bruscato, When O’Brien Bruscato had been living parents years. that, with his almost two Before he had been living group operated in a home the Gwinnett-Rockdale-Newton (“CSB”), Community Service Board but he had been from removed might sexually girl. the home the risk because of that he assault expert opined elderly parents Bruscato’s witness that were ill-equipped manage severely mentally-ill adult and were “strong-armed” taking home, into him home. While at Bruscato receiving outpatient continued treatment the CSB. Bruscato’s expert opined witness that the medications the CSB adminis- staff tered to Bruscato controlled his violent behavior and sexual im- pulses. potentially danger- O’Brien knew because Bruscato was required parents continuously. ous, CSB him monitor May In late O’Brien ordered that two of Bruscato’s Zyprexa medications, Luvox, be discontinued for six weeks to possibility might developing rule out the that Bruscato neuro- (“NMS”). malignancy leptic syndrome expert O’Brien’s own witness opined expert that, if NMS, Bruscato had which the he believed did proper procedure hospitalize not, the would be to him. He also opined withholding period Bruscato’s medications for that possibility very medically NMS, rule out the rare, which is was not justified.
According family friend, to a about two-and-a-half weeks after stopped taking Zyprexa began having Luvox, he nightmares, panic heavy sweating. attacks, and bouts of He also hearing telling increasingly kill, started him to voices and he became July parents. met with Bruscato
hostile toward his On O’Brien spoke rapidly, briefly excited, seemed and was and noted that any changes feeling angry O’Brien, however, did make at women. August plan. 11, Bruscato scrawled a to Bruscato’s treatment On prayer big tormenting “[I] “prayer stating: note,” time devil need deposition convey opined in the letter “could me.” O’Brien August visiting psychosis.” 14, a friend Bruscato’s home ob- On *3 rocking pleading bed, him on his for the voices served back and forth nurse, in him A who visited on the same his head to leave alone. also day, argumentative, expressing was noted that Bruscato was thoughts generally dreams, and was about sexual fantasies irritable. August 15, his mother’s skull with a
On Bruscato crushed battery charger killing ques- times, her. When and stabbed arresting officers, Bruscato said that he killed his tioned wrong, he it was but that the devil had told mother and that him do it. prison knew jailed, Bruscato the assistant director of to After health wrote Bruscato’s criminal defense mental services attorney. that, arrested, him when Bruscato was he had She advised “non-compliant anti-psychotic medications,” and, his been during reported auditory assessment, he had hallucina- his intake “persecutory nature,” in that he had trouble tions that were controlling impulses, very poor insight and that he had into his asking family situation, “what member of his would become his new “brought whether his mother could be mother.” Bruscato wondered reintroducing Zyprexa After into Bruscato’s medication back life.” regimen, “compliant” the director noted that he became and that his “improved steadily.” Although condition Bruscato was indicted for incompetent his mother’s murder in he was found to be summary judgment stand trial. As of the date of the trial court’s residing case, order in the instant Bruscato has been at Central State Hospital, where he had been committed. expert opined
Bruscato’s witness that when O’Brien abruptly Zyprexa, [Bruscato’s] terminated was this required O’Brien, a violation of the standard of care of Dr. it [Brusca- imposition changes in resulted in the of chemical changes produced to’s] in brain. Those chemical turn ad- physical responses [Bruscato’s] verse brain and ulti- mately body. in his expert merely
The stated that Bruscato’s mental illness was not — neurological behavioral, emotional or but “a medical disorder.” expert opined changes The further that the chemical that resulted withholding “decompensate” medication caused Bruscato to experience symptoms the return of most severe of his auditory including agita- disorder, hallucinations, command hostility. expert tion, and concluded that O’Brien’s treatment gross negligence disregard consequences “manifested and a leaving historically potentially psychotic patient violent and un- ultimately medicated,” which led Bruscato’s mother psychotic while state. granted
1. Bruscato contends the trial court erred when it summary judgment upon finding O’Brien’s motion for based injury provides recovery,” he “failed to establish for which the law judgment and entered complaint. Specifically, in favor of O’Brien on all counts argues court erred characterizing damages arising prior claim attack “[mjental anguish” his mother as a concluding claim distress and physical injury had because Bruscato suffered no pecuniary prior recovering attack, loss was barred from “negligent *4 the infliction emotional distress” the so-called “impact agree. rule.”2 We malpractice
“Three elements to are essential establish a medical duty patient; claim: the doctor’s duty through to his the doctor’s breach of that requisite degree the failure to the exercise of skill and injury proximately care; and caused the doctor’s failure.” (Citations omitted.) (2) (650 Haughton Canning, v. Ga. 718) (2007). pertains 51-1-27, SE2d OCGA which to actions for malpractice, provides: person practice professing medical “A to surgery administering compensation the or medicine for must bring profession degree to the exercise of his a reasonable of care and injury resulting Any skill. from a want of such shall care skill recovery may (Emphasis supplied.) a tort which a be had.” clearly provides compensable injury may statute that a from result physician’s properly failure medicine, administer and we have drugs properly held whether that were administered medical is a question involving professional judgment See v. skill. Williams (a) (1) (642 Center, Alvista Healthcare 615-616 232) (2007); Shirley Hosp. Auth. Valdosta/Lowndes 873) (2003). County, App. 408, 409-410 psychiatrist, O’Brien, that
Bruscato asserts breached his duty misdiagnosed possible of care to him he NMS, when him with negligently regimen thereof, altered his medication as a result clarified, long explained, distinguished, A succession of cases and limited the prevent plaintiff recovering negligence rule to for emotional from distress plaintiff physical injury monetary defendant when the not suffer or did either as a result loss (II) See, negligence. e.g., of the 82) (2000). Lee State Farm Ins. &c. 586-588 physical,
negligently mental, and emotional status monitored avers the medications. Bruscato he withdrew from while injuries: malpractice, he he these suffered of O’Brien’s medical result auditory point experienced “decompensated” he com- where telling kill, he “to a state of him to succumbed mand hallucinations profound deprived [he] to the extent that mental confusion ... impulses,” experienced any ability violent he to control his underlying psychosis,” “reemergence he suffered a of his reality, during psychotic he killed his mother. which break with summary judgment, opposition O’Brien’s motion for Further, in abruptly expert opined that, O’Brien dis- when witness Bruscato’s experienced medication, chemical Bruscato’s continued body ultimately, changes affected him and, in his brain physiologically. alleges injuries
Pretermitting that Bruscato whether the negligence physi- professional were as a result O’Brien’s suffered cal, question psychological, is irrel- both, conclude that the we malpractice that the medical claim. We conclude to Bruscato’s evant “any injury” malpractice provides re- statute, which compensable injury, sulting duty physician’s is a of a from the breach reaching application “impact In rule.” is not limited underlying purposes of we conclusion, have considered negligent “impact applying rule” to causes action no rational and conclude that there is infliction of emotional distress sounding applying in medical rule causes of action basis *5 malpractice. beyond dispute normal, is a even that “emotional distress”
It is array expected, part infinite of life can be caused an almost of and person’s Further, a of those factors. factors or a combination subjective perception is and of his or her “emotional distress” prove disprove, between or as is the causal connection difficult to allegedly negligent the emotional act or omission and a defendant’s “[i]n Supreme Georgia that, a held Thus, the Court of distress. claim tress is allowed that footnote recovery concerning negligent for emotional dis conduct, a plaintiff, impact is on the and there some where (Citation, injury.” punctuation physical impact and be a must (I) omitted.) Ga. 584 v. State Farm &c. Ins. Lee (2000).3 Georgia impact “[T]he rule has three current (2) (1) physical physical impact plaintiff; the to the elements: a (3) plaintiff; physical physical injury impact the to the causes aspect impact which in cases not rule allows We do address that plaintiff involving a negligent of when the has suffered the infliction emotional distress rule, aspect the see Nationwide &c. Ins. Co. pecuniary For full discussion of that of loss. a 283) (2001). Lam, Ga. injury plaintiff plaintiffs suffering to the causes the mental or (I). emotional distress.” Id. at 586 policy traditionally given having
There are three reasons impact denying recovery rule for emotional distress physical injuries. fear[ ] First, unrelated to there is impact, litigation that[,] absent there will be a flood of of [there] Second, claims emotional distress. is the concern perception Third, is for fraudulent claims. there impact, difficulty proving absent there would be negligent causal connection between defendant’s con- [T]he duct claimed emotional distress. . . . impact plain provides
benefits brighter an rule are that it a liability relationship line a and clear between the plaintiff’s being duty compens- victim breach ability plaintiff. to the (Citations (II).4 emphasis supplied.) Consequently, omitted; Id. at 587 impact applied appropriate the involving rule measure to be in cases negligent bystanders infliction emotional distress to parties impacted physically or third who are not the defendant’s negligence injuries and whose are not a result such foreseeable (en- (Hunstein, negligence. concurring specially) J., See id. at 589 dorsing foreseeability preferable “regressive” impact rule rule). (or concept, Without the rule some related such as foreseeability) potential prevent to limit claimants and to frivolous single negligence lawsuits, defendant’s act of in his could result having against bystanders to defend claims a multitude alleged their emotional distress. policy present concerns, however,
The above-stated are malpractice require physician- cases, cases because such patient relationship plaintiff. between the defendant and the See (2). Haughton Canning, 51-1-27; OCGA Consequently, question regarding there is no to be resolved *6 4 Lee, Supreme ultimately In the Court that concluded case, policy impact the our in concerns behind traditional rule are not extant this appropriate compelling is and there no meritorious reason in an and to situation to extend emotional distress to an incident in which the distress refuse for physical injury negligently result of the inflicted another. The circumstance When, here, appropriate compelling parent is such an case and situation. physical impact physical injuries through direct and child sustain a negligence and the another, negligence, parent and the child as the of such dies result the may attempt suffering witnessing to recover serious emotional distress from the child’s regard and death to whether emotional without the trauma arises out physical injury parent. the the (Citations (III). omitted; supplied.) emphasis and footnote at 588 Id. alleged impact negligence
emotional of the defendant’s on third parties bystanders, nor is there concern about a “flood of litigation” arising negligence. Further, from such the concern about avoiding already fraudulent or frivolous lawsuits is addressed the § pleading requirements strict of OCGA 9-11-9.1. See Bowen v. (1992) (“The purpose
Adams, § malpractice of OCGA 9-11-9.1 is to reduce the number of frivolous (citation filed[.]”) omitted). being punctuation suits and Finally, plaintiff expert support once the affidavit to obtains applicable profes- his or her claim that defendant violated the 9-11-9.1), (pursuant presents sional standards to OCGA and evi- “[a]ny injury resulting dence of from a want of such care and skill” 51-1-27), (pursuant regarding to OCGA determinations the exist- plaintiffs injuries ence and extent of the and whether the defen- negligence injuries generally questions dant’s caused those are jury Putney Hosp., to resolve.5 See Pruette v. Phoebe Mem. (1) (671 844) (2008) (“questions regarding proximate undeniably jury question may only cause are plain undisputed determined the courts in cases. Further- summary judgment nonmoving party more, required context, in the is not produce demanding judgment party, evidence for that but fact.”) present evidence which raises a material issue of (citations omitted); punctuation Abel, see also Jones v. 822) (1993) (evidence App. 889, 895-896 plaintiff depres- was distracted from his business and suffered from psychiatrist’s malpractice sion as the result of his was sufficient to proximate damages jury). send the issue cause and to the There- applying fore, the trial court erred rule this medical malpractice case. granting
2. Bruscato contends that the trial court erred summary judgment occurring to O’Brien on Bruscato’s claims for the time he attacked his mother and thereafter on the
at. public “[t]he policy Georgia any recovery basis that bars for a by person illegal act, cause action who has committed an where plaintiff depends upon illegal act to establish his case.” The brought by trial court characterizes Bruscato’s lawsuit as a “claim psychiatric patient against psychiatrist failing prevent his .. . patient committing Finding murder.” Bruscato’s conduct wrongful” assuming “unlawful and that all of Bruscato’s post-attack damages illegal act, flowed from his the court concluded grant summary judgment It follows it would constitute reversible error to *7 (standard (c) granting summary defendant under such circumstances. See OCGA 9-11-56 for judgment). public policy, “clearly aas matter of Bruscato’s claims were barred.” This was error for several reasons. damages
Bruscato’s claims for not are limited those which complaint flow from the act of his mother. Bruscato’s seeks damages malpractice, upon for medical is which based O’Brien’s encompasses damages flowing actions and which alleged negligent from O’Brien’s including, example, treatment, for physical injuries experienced and emotional Bruscato as a result of ongoing deprivation Thus, of his if medication. even Bruscato is “wrongdoer,” characterized as an intentional his status as such recovering not be bar would a to his for those that are not alleged illegal attributable to the immoral or act. Georgia person
Further, law, under “a does not become an (Citation, rights by doing illegal and outlaw lose all act.” omitted.) punctuation emphasis Smith, and Adams v. 129 Ga. (3) (201 639) (1973).
850, adjudicated case, SE2d In this no court competence sanity of
the issue Bruscato’s mental or at incompe- was, however, the time he committed the crime. He found yet trial,6 tent to stand and he has to be tried for the crime which competent Moreover, he was indicted. should Bruscato later found jury may yet guilty.7 trial, to stand find him not Because Bruscato guilty mother, has not been found is the murder of his presumed Thus, innocent. OCGA 16-1-5. because no court has judgment finding legally responsible entered a for his competence mother’s murder and the issue because of his mental disputed, jury the time of the crime has been issue exists as to requisite capacity whether Bruscato had the mental to commit murder. rely upon
Moreover, the statutes trial court and dissent embodying Georgia’s public policy prohibiting wrongdoers as profiting only prevent “feloniously from their crimes those who placed AId. the nature and crime Brown v. a criminal act.” incapable capacity aof OCGA (2002). preponderance finding delusional charged. Under In a act, omission, §§ A criminal defendant 16-3-2, 16-3-3; trial, distinguish competency proceeding, making Georgia object incompetency Indeed, compulsion yet law, between “a be insane within the the criminal Adams v. evidence. Foster negligence defense, State, person may person which overmastered is to stand trial right incompetent and on the State, constituting proceedings insane, be sane defendant has the burden wrong in does State, contemplation other and shall not be enough stand and of relation to the criminal act or acted because 275 Ga. address the defendant’s hand he crime, trial to be assisting will to resist if of the law to responsible he is may guilty person 618) (1960). 867-868 have mental incapable 838) (2008). attorney proving of a committing did not have mental crime, (3) (572 culpability [a] responsibility incompetency with his defense. understanding crime, capacity if at the time the crime. for the to be yet *8 (a),8 who commit “mur kill, § 53-1-5 or those OCGA
intentionally” 33-25-13,9 § from sharing, OCGA manslaughter,” or voluntary der policy proceeds. estate or insurance in the decedent’s respectively, who are buy those Further, essentially requires § 17-14-31 OCGA the purchase story place media to an accused’s rights ing or victims. the benefit of the victim an escrow account for into money if disbursed, however, person the accused “only to be money The is OCGA 17-14-31 plea guilty[.]” or enters a eventually is convicted (a) (3). disposition Moreover, special provision this statute makes is unable to proceed cases where the accused of the funds those to stand trial. incompetence or mental insanity trial because of (e). be from Thus, may gleaned if a public policy § 17-14-31 OCGA who commit murder that those statutes, policy prohibits these it is a victim’s death. from the manslaughter profiting voluntary or who kill however, of those statutes, impair rights do not These any kill in self-defense or pursuant or who negligence, accident Simply kill while insane. legally or who legal justification, other one a a homicide does not make committed admitting having under law.10 Georgia wrongdoer the trial court and the
Further, cases which foreign upon Bruscato is a who is wrongdoer for the rely proposition dissents are public policy grounds from his crime profiting barred from had been convicted of involved who plaintiffs Those cases inapposite. of the defendants’ claimed were the result they the crimes for which (d) guilty plea judgment provides “final of conviction or a further that a OCGA 53-1-5 murder, murder, proceedings felony voluntary manslaughter in civil under is conclusive or plea, the felonious and intentional In the absence of such a conviction this Code section. convincing killing clear and evidence.” must be established finding guilt plea guilty judicial provides “[a] or a not also This Code section prima- guilt of such crimes shall be facie evidence or otherwise set aside as to reversed summary proof, determining rights in order to obtain under this Code section.” Absent such statute, undisputed a matter of law that the judgment evidence must show as under this voluntary manslaughter. wrongdoer Cantera v. American alleged either murder or committed 259) (2005). Heritage 310-312 Ins. Life where, analysis, fact, imagine under the dissents’ a number of scenarios In we can example, bipolar teenager any recovery. Imagine, deserving plaintiff would be denied who, receiving wrong professional, history upon a medical medication from no of violence — hallucinatory, medication a rare but known side effect of the delusional mania suffers brother, state, believing that he a home the child kills her received. While that delusional delusional, perceives raping killing as one of her. she act bent on While invader medication, realizes her mistake recovers from the effects of the she self-defense. When she and, remorseful, jury likely A profoundly admits her brother. would traumatized and Yet, analysis, murder, acquit under dissents’ she is a if she is even indicted. her of remedy wrongdoer for the loss of her brother. dissent for whom the civil law offers no against negligent people who have limited recourse created a class who, mentally people they stigmatized for reasons professionals, immoral those ill have control, may entirely beyond acts. their commit violent which negligence11 knowingly intentionally or who were found to have participated proximately injuries.12 in the crimes that caused their In *9 plaintiff requisite cases, each of these a court found that the had the Moreover, criminal intent to commit the crime. none of those cases proposition psychiatric patient stand who kills while lacking capacity requisite the mental form to criminal intent for voluntary manslaughter bringing murder or from barred a medical malpractice against psychiatrist. action involving negligence against
However, in a of series cases suits psychiatrists patients, for harm caused their either to themselves recognized patient’s psychiatric others, Court that a may prevent having capacity disorder him from the mental or, exercise control exercising least, over intentional behavior from degree prevent a reasonable of care in order to himself harming Ridgeview Institute, from others. See Brandvain v. 188 Ga. (3) (c) (372 265) (1988) (“[A]
App. patient may 106, 117 SE2d be so mentally any law, ill of a matter he is not held to exercise degree contributorily himself, and, therefore, of care cannot be Cooper, (citation omitted); negligent.”) App. 184 Ga. Swofford (360 (1987) (4) 624) (Because plaintiff psychotic 54 was incompetent his father, when stabbed and had been declared any degree trial, “he stand of could not have been held to the exercise of (citation diligence.”) omitted); punctuation Hosp. Misfeldt (115 244) (1960) App. 579, Auth. 101 Marietta, 581-584 of (It was error the trial court to direct a verdict in favor of the hospital patient’s because the evidence of the illness mental and the steps hospital protect reasonableness taken disputed Emory jury.); herself Lee, were and for the Univ. v. (6) (1958) 234) App. (physical precedent only) 680, 702 (“If judice conclusively proved evidence in the case sub that the plaintiff injured entirely was on the occasion when he was bereft of reason, it is obvious that he could not have been held to the exercise any degree diligence.”). of of explained Ridgeview Institute,
As we
in Brandvain v.
the fact
(Iowa 1981) (convicted
Taylor,
murder);
Cash,
See Cole v.
that a act was volitional does not mean patient responsible that it was a rational act for which the alone was physician hospital duty or which relieved the or the of its (3) (c). patient. case, at 118-119 In this Bruscato has not any judgment murder, been convicted of nor has court entered a finding mentally competent Further, him time at the crime. establish, law, the evidence below does not as a matter of mentally competent Bruscato was he killed his when mother. Brus- “wrongdoer” any cato is not a status as be a bar whose such would Consequently, summary judgment of his claims. on this issue or *10 relating contributory negligence causing issue to Bruscato’s his by evidence, and, therefore, mother’s death is not authorized granting summary judgment trial court erred in in O’Brien’s favor on this basis.
Judgment Phipps, Miller, J., Barnes, J., J., reversed. C. P. P Doyle, specially part JJ., concur. Johnson and concur in and dissent part. Andrews, J., in P dissents.
Doyle, in in Judge, concurring specially part dissenting part. agree fully majority opinion.
I with Division 1 In addition, of the though apply even malpractice rule does not to Bruscato’s medical testimony Roy expert,
claim, I note that Neil physical injury upon Johnston, M.D., that Bruscato suffered a anti-psychotic by O’Brien, discontinuation his medication Dr. question would create a of fact on this issue. respect part 2,
With I in in to Division dissent because public policy13prohibits recovering instance, Bruscato from damages arising out of the death of his mother for the reasons set Presiding Judge forth in Division 2 of Andrews’s dissent. There is no dispute May 2003, killed Bruscato his mother. On Bruscato pleaded mentally incompetent trial, that he was to stand and the finding mentally incompetent trial court entered a to stand trial. As him consent order pointed Presiding Judge dissent, out Andrews’s incompetence doing Bruscato’s defense of mental “admits the charged.”14 act (a) (“An feloniously intentionally Cf. OCGA 53-1-5 individual who kills or
conspires procures killing right to kill or of another individual forfeits the take personal representative interest from the decedent’s estate and to serve as a or trustee of the any decedent.”); (addressing decedent’s estate or trust created OCGA 17-14-31 crime). profits distribution of received as result of the commission of a 14 (Punctuation omitted.) 129) (2) (478 (1996) (“An State, Brown v. doing justify, charged affirmative defense is a defense that admits the of the act but seeks to it.”). mitigate State, Kelley excuse or See also — (“A (1998) plea guilty by insanity plea of not reason of is a of confession and avoidance it complaint Further, admitted in his that because “he reality, severely psychotic, out touch had diminished August [his] impulse 15, 2002, control on “when mother ... at discipline withholding [him] tempted privileges Bruscato] .[, . .
picked up charger battery and smashed his mother the head and resulting knife,” then stabbed over 70 times with a her death.15 questioned by arresting officers, When Bruscato admitted that initially mother, hid he the knife he used to stab and he also stating wrong, her, admitted to knew it was but that it. “if the devil had told him to do Bruscato also asked a doctor had taking him medication, taken off and the act of him off the medica person violent, tion had made him would the doctor or the who responsible act[ ] committed the violent for that act.” Under these necessary responsibility facts, it is not to further establish Bruscato’s preclude for the death of his mother in order to for his In action, mother’s death. this tort there is no and will never be dispute that Bruscato killed his mother. complaint, however,
As set forth in Bruscato’s “suffering through psychotic reality include break with caused anti-psychotic *11 withdrawing [Bruscato]’s Dr. O’Brien medication.” period prior These are not limited to the time to Bruscato’s necessarily from attack on his mother and do not flow the act of — killing public policy Thus, his mother. our determination that bars any damages recovery as from his Bruscato’s to that flow act of — killing damages, his mother his would bar for those regardless any, timing. act, if that are not attributable to that of grant summary judgment Nevertheless, the of to trial court’s seeking damages arising from his act claim to recover for the of appropriate his mother and should affirmed. Judge joins in I am authorized state that Johnson this opinion. Judge, Presiding dissenting.
Andrews, appearance us. In This is the second of this case before Community Bd., v. Gwinnett-Rockdale-Newton Svc. Ga. (660 440) (2008), grant summary SE2d of this Court affirmed wrongful against judgment in Dr. Vito Bruscato’s death action failing protect wife, mother, O’Brien for Vito’s also Victor’s indictment, pleaded of admits facts in the but avoids conviction because the condition of offense.”) omitted). insanity (punctuation of the defendant at the time of the As Bruscato opposition summary judgment, charged in in admitted his brief he ‘‘was murder adjudicated (Emphasis repeatedly incompetent mother’s death has been to stand trial.” but supplied.) 15 (Emphasis supplied.) psychosis, the mother’s death the results which included Victor’s Today, majority holds that Dr. O’Brien’s her son’s hand. resulting resurgence withholding medication, Victor’s injury” preexisting psychosis, “physical to a amounts sufficient ground This result emotional distress claim. eviscerates Victor’s own seeking damages longstanding Georgia plaintiff rule that a negligence caused a defendant’s must show emotional distress injury.” majority “physical also runs afoul suffered rewarding wrongdoers widely recognized public policy against “pain guise granting suffering,” when, under relief for his profit killing of own authorizes Bruscato to from the it Victor reasons, I For these dissent. mother. both of Supreme exception single 1. With a marked out our Court 82) (533 (2000), Co., SE2d v. State &c. Ins. Lee Farm Ga. negligent Georgia always rejected law claim for infliction impact. arising physical Instead, emotional from mere distress Georgia plaintiff century, required that a more than law has negligence, claiming distress as a result of a defendant’s emotional physical including malpractice, injury must show either monetary e.g., Chapman Telegraph Co., See, Western Union loss. (15 901) (1892); Littleton, Ga. 763 OB-GYNAssoc. v. 88 663 SE (Littleton II) (386 146) (1989) and OB-GYN Assoc. v. (mother (410 IV) (1991) (Littleton Littleton, 261 shortly bring child who after birth could claim died portion physical her own emotional distress caused injuries); Gateway Mgmt. Owens 501) (1997) (lost ground wages were insufficient to emotional claim). distress overruling *12 its Littleton discussion of the rule featured IPs Turnage, Christy Circus v. 38 Ga. SE Bros.
(1928),
by a
which sustained an emotional distress claim
woman into
lap
noted,
whose
a circus horse had defecated. As Littleton
Prosser
Bros,
singled
Christy
impact
an
of the
had
as
absurd extension
out
(2), citing
Keeton,
II,
rule. Littleton
flood of difficulty a concern about fraudulent and the proving negligent a causal connection between conduct claim) foreseeability an emotional As distress rule. Supreme Lee, however, in “the Court held in that it an rule benefits of plain provides brighter liability” are line aswell “a relationship” plaintiffs negli- clear gence as a victim between status right compensation. (Emphasis supplied.) and her (II). explicit bright requiring at 587 This confirmation of rule line any physical injury by any judge policy question should foreclose discussion notice, Instead, on this Court. and until further majority any any arguably negligent causing renders act observable change chemistry any preceding catastrophic in brain event which plaintiffs any expert proximate later testifies to be the result of the authorizing negligent jury enlight- act as to award amount its appropriate. I ened conscience finds the cannot condone this result or rationale used reach it. Although previously Georgia,
2. the issue has not arisen in well-developed jurisdictions public policy rule other bars a wrongdoer’s arising from own emotional distress claim immoral wrongdoer when, case, act. This is so as in this even does not possess culpability legally rea the mens to establish sufficient that act. (Iowa 1981), Taylor, leading In the case Cole NW2d 766 Supreme against treating the Iowa Court barred a killer’s action psychiatrist as follows:
[A] person if, cannot an maintain action order estab- rely, part, action, lish his cause of he must or in whole illegal or immoral act or which he is a transaction to party, or to maintain a claim on his own based *13 wrong neglect, or caused his own ... or where he must part, action, his base cause of in whole or in on a violation penal himself of the criminal or laws. (Citations punctuation emphasis supplied.) omitted; Id. (II). Any categories wrongfulness, words, of these in other should recovery. Shortly Cole, moreover, be sufficient to bar after a second felony murderer’s decision because an arsonist and Iowa held that avoiding capacity provided proof for the Cole no basis of diminished granted summary judgment to his rule, trial have court should concerning Cash, tort claim. v. 318 NW2d doctor Veverka (Iowa 1982). recognized then, as the Since Cole has been 450-451 majority among the the few courts to have considered
American rule (Wyo. Casey Family Program, P2d v. issue. Feltner (Mich. 1995); Lee, see also NW2d 857 Glazier plaintiffs against psychiatrist (applying in the Cole to bar claim girlfriend); plaintiffs killing Bick, Hines 566 S2d of his wake (La. 1990) (same). 455, 459-462 plaintiffs guilty of is true Cole and were found It that the other bringing suits, has murder their the before tort whereas mentally incompetent of his found trial the been to stand however, held, As have the Cole rationale mother. other courts plaintiff may criminally responsible applies even not be held where a Appeals conduct. the New York Court of barred a claim Thus fifteen-year-old against nine-year-old supplying the former holding “[ajlthough plaintiff may not be firecrackers, the criminally responsible conduct, for his the fact remains that held constructing prohibited by Kallash, 468 a (N.Y.1984) law.” Barker v. bomb Cole). (citing 39, 42 NE2d feloniously “[a]n inten-
It is also who true that individual right tionally person interest kills” “forfeits the take an another (Emphasis supplied.) 53-1-5 estate.” OCGA decedent’s (a). Assembly’s disap- Although expresses the General this statute majority wrongdoer profiting wrongful proval act, of a from his brought justify validity by person who it to of a tort claim uses possess requisite against rea a decedent’s estate. does The claim, mens garden variety application tort statute no Bruscato’s however, that claim is not an inheritable “interest” because under Probate Code. legally short,
In
if Bruscato has been
excused from
even
incompetence
consequences
actions,
of his
his defense of mental
charged.”
necessarily
doing
State,
“admits the
act
Brown v.
129) (1996). Georgia’s public policy
against allowing wrongdoers
profit
wrongful acts
from their
recovery
expresses
legitimate repugnance
the law’s
at Bruscato’s
theory,
any damages,
As
under
for his emotional distress claim.
succinctly put
reject plaintiffs
Cole court
the matter: “We
recovery,
they
rationalized, but
not because
cannot be
theories
(II).
they
justified.”
because
cannot be
467 withholding of doctor’s medication. Because either of these reasons grant summary would be sufficient affirm the trial of court’s judgment, majority opinion. I dissent to both divisions of the 1, 201 Decided December 16, denied Reconsideration December Jerry appellant. III, McCumber, Quinn
William G. D. Egan, Sweeney, Owen, Gleaton, III, & Jones Milton B. Satcher appellee. Marshall, for Laura C.
A10A1257. RAINLYv. THE STATE.
A10A1258. EVERETTE v. THE STATE.
A10A1259. ROBINSON THE STATE. v.
(705 Presiding Judge. Phipps,
Joseph Rainly, Phylicia Everette and Michael Robinson were together 18, tried connection with the December armed robbery Rainly of a video store. and Robinson were of each convicted robbery, aggravated assault, two counts of armed two counts of two kidnapping possession during counts of and one count of of a firearm felony. of the commission Everette was convicted one count of of aggravated robbery, assault, armed two counts two counts kidnapping, during possession one count of a firearm the commis- (a felony, receiving property sion of one count theft stolen handgun) possession marijuana Glock intent and one count trial, filed
to distribute. Each defendant a motion for new granted kidnapping which the trial court as to the convictions1 and remaining We denied as convictions. have consolidated their appeals. arguments appeals vary While the raised to some appellants’ arguments challenges extent, include to the suffi- ciency support aggravated evidence assault and theft receiving property allowing convictions, stolen the court’s evidence concerning prior robbery store, and statements of the same victim-impact counsel, effectiveness of trial the introduction of asportation kidnapping proved light The court found the element Garza (670 (1) 73) (2008) State, (overruling asportation finding cases movement”); State, proved by “slight (1), element but see Leverette 62) (2010) Garza, (subsequent legislature kidnapping n. amended the element, regarding asportation applicable statute said crimes amendment committed 2009). July or after