*1 Sapp Davis, for Davis, Newman, L. Newman, L. Michele & Alan appellees. AUTOMOBILE LEE FARM MUTUAL et al. v. STATE INSURANCE COMPANY
A99A0601. et al. (517 328) SE2d
Judge R. Banke. Harold acci- motorist caused an automobile An unknown hit-and-run significant Bridget her received in which Lee and dent suffering, daughter’s physical injuries. Lee witnessed her eventually daughter’s State Farm in the death an hour later. resulted Company and Allstate Insurance Mutual Automobile Insurance Company provided uninsured motorist Lee and her husband with daughter’s wrongful policy protection paid limits on the and out the injuries brought recover for her own death claim. Lee and daughter’s sufferings suit to witnessing experienced the emotional distress she jointly of and death. Her husband sued for loss behalf, Farm intervened on its own and Allstate consortium. State motorist. has defended the “John Doe” name of the unknown summary judgment in on The court entered favor of defendants Claiming argues error, Lee that Lee’s claim for emotional distress. distress from law allows a mother to recover for emotional witnessing injuries the mother is also her child’s and death where physically impacted the same tortious conduct. Albany Georgia’s impact rule,1 OB-GYN Assoc. 1. Based on (“Littleton IV”)2 held such are not actionable. v. Littleton signs alleged though medically indicated of fetal that surgical perform distress, delivery the doctor failed to a caesarean section delivery resulting prolonged vaginal child, of her with the causing physical injury child, died to both her and the delivered who days Thus, same force or caused the two the child and mother. She later.3 sought to recover for the mental distress subsequent death. associated with her child’s Quoting Appeals decision,4 Court stated: a Court of (A) (2) (386 Albany v. 665- 666 SE2d See OB-GYN Assoc. of (1989) (“Littleton II”) (the plaintiff “impact requires bodily rule” actual contact with result lie). ing physical injury distress to claim for emotional 837) (1991) P.C., Albany, Littleton v. OB-GYN Assoc. (“Littleton III"). 46, fn. Id. at 1. any potential emphasizе
We Littleton to result of the award of to Mrs. malpractice claim for her is limited compensation any physical injury she suffered as a
alleged negligence, mental consequence emotional distress she incurred as a of her physical injuries. Any mental or emotional distress compen- *2 she suffered as a result of to her child is not in this claim.5 sable
Subsequent though decisions have reiterated that even may experienced physicаl impact mother herself defendant’s tortious arising have and harm from may
conduct, she not recover for mental distress sufferings from her child’s caused Recovery conduct.6 for emotional distress must arise out of her own physical injuries, separate physical injuries and not out of to the child.7
Thomas v. Carter8 focused on this distinction. The court allowed a mother to recover for emotional distress associated with the death of her fetus because: injury to both the mother and the fetus was caused
the direct force to the mother in the automobile collision which resulted in the in útero death of the fetus. The trauma placenta injury to the mother, is an to the not to the child. It any separate injury mother, was this to the and not fetus, that Thus, caused the death of the fetus. unlike Littleton, the death of the child was the direct result of an injury to the mother. recognized plain-
In
Court
that a
bring
negligence resulting
injuries
tiff could
to her
an action for
person.
may
compensa-
This claim
include a claim for
any
consequential
tion for
emotional distress which is a
damage resulting
injuries.
any
from those
case,
this
emo-
by [the mother]
tional distress suffered
due to the death of
5 (Citation
omitted.)
punctuation
IV,
supra,
Littleton
the child’s contrary Jackson11as Lee and the dissent cite Southern R. Co. v. authority. reading with reveals that it is consistent A close of Jackson in Division 1 that a authorities cited Jackson held the recent above. negligently physically run train and who is mother wrong right her- “has a of action for the whose child is also physi- if were not In Division Jaсkson held that the mother self.”12 cally injured was, could not seek to recover for the and her child she n injuries.13 from the child’s Jackson does emotional physical injuries allow her to state that to the mother would seeing with her child recover for the mental distress associated *3 hurt.14 misguided,
The dissent’s reliance on a “commonforce” doctrine is Georgia as no or used such a erenced court decision or statute has referred to such a doctrine
phrase. briefly concept most, ref- At a form of the was explained referring Thomas,15 in then it was but Thomas proximately where themselves situations caused the mother’s injuries.16 guidance the child’s In view of Littleton TV’sclear liberty matter, on this we are not at to create new causes of action or Supreme precedent. to overrule Court entering summary judgment Thus, not err in on did court daugh-
Lee’s claim for mental distress
from
injuries and death.
ter’s
9 (Citations
punctuation omitted; emphasis supplied.)
and
Id.
10 Id. at 387.
11
(91
in a mother railroad tracks to sue for her was avoiding approaching engine operated in in a sustained a fall while negligent manner, Supreme grossly held that but in the second headnote our Court mangling frightened and “the fact that she witnessed the of the child and became recovery.” suffered a sevеre nervous shock therefrom would not entitle her to a App. at 386-387. 16Id. at 387. ruling question in
2. The Division moots the of whether State policy “bodily Farm’s uninsured motorist would cover this claim as a injury’ to Lee. Judgment McMurray, Johnson, J., J., C. P. and affirmed.
Andrews, J., Blackburn, J, Barnes, JJ, P. concur. dissent. Ruffin
Blackburn, Presiding Judge, dissenting. respectfully majority’s opinion I must dissent from the precedent, including applicable only relies on cases,17 the Littleton parent injured by Here, where a and child were not the same force. parent injured by however, the and child force, were common entirely jurisprudential analysis required. an different language quoted by majority, regarding emotional dis- damages step analysis tress comes of the Littleton only addresses the rule in those situations where there is no parent by to both and child a common force. The court previously step Littleton had determined in 1 that the mother and (who later) days injured by sepаrate fetus died two had been acts of malpractice. damages Thus, under no for emotional dis- tress the mother caused the death of her child could be recov- they ered, because were not a common force. secondary analysis parent, This level of allows who has satis- requirement, fied the rule to recover for emotional distress parent’s physi- child, if the cally injured by injures analysis, the same force which the child. This whether referred to in terms of a “common force” or “same force” analysis, employed properly otherwise, must be decide the comprise us, and, issues now before it does not a new cause of action Supreme precedent. and is not in conflict with Court fact, this doctrine was set forth in Southern Jackson, R. Co. v. 28) (1916), approved by SE which was Court Littleton cases. parent, physically injured by law does allow a who is parent’s
same fоrce which distress caused child, said to recover for emotional by witnessing negligent injury of the child. This only Georgia’s element of is recoverable under “common force” rule and is addition to other recoverable for the *4 parent’s physical injuries any suffering arising own mental therefrom.18 17 P.C., (385 743) (1989) Albany, Littleton v. OB-GYNAssoc. App. 192 Ga. SE2d of (Littleton II); Littleton, (386 146) Albany (1989) OB-GYNAssoc. v. 663, 259 Ga. SE2d of (Littleton II); (403 P.C., 837) Albany, Littleton v. OB-GYNAssoc. SE2d of (1991) (Littleton III); (410 Albany, Littleton, and OB-GYNAssoc. P.C. v. SE2d 121) (1991) (Littleton IV). case, dispute parent’s In this right damages any there is no as to the to seek for claim may physical injuries
she suffering arising have for her own and mental therefrom. pain recovery Georgia permits result- for mental 1. ing injury negligent, is a “Where there conduct. tortious recovery damages compensatory pecuniary include for loss, or suffering’ though pain accompanying the tortious even ‘mental Cemetery merely negligent.” complained v. of is Westview conduct Blanchard, 234 Ga. negligent regard infliction of claims for the However, with shrinking minority of states which distress, in a emotional damages “impact for emo- rule,” the which limits continue to follow requires impact claim, rule an an the tional distress. For actionable resulting bodily impact conduct, from defendant’s actual except plain- act of was directed where a wilful defendant (1998 ed.), Damages Harper, p. § 1-3, 3; James & tiff. Law of Ga. (2nd ed.), Gray, p. concerning § 18.4, 687. “In a claim Law of Torts only recovery conduct, a emotional distress is allowed impact plaintiff, impact where there is some on the and that must be Callaway, physical injury.” Ryckeley a (1992). Ga. 828 v. recovery par- Georgia’s for a “commonforce” doctrine authorizes parent’s ent’s emotional distress child physically where has rule and is satisfied the same force the child. This is “com- Georgia. mon in force” rule present case, then, in the
The issue to be resolved whether Bridget pursuant Georgia’s doctrine, Lee, force can common recover for the emotional distress she suffered as a result witness- ing daughter’s death in which in an automobile collision she was stipulated by parties injured. also Lee It was sustained physical injuries in the in same automobile collision which resulted daughter, significant of her that she death and the death suffered emo- tional in of her child.
The trial court this issue favor of defendants on their resolved partial summary judgment, concluding motion that Lee may damages recover her claim of mental she suf because or emotional distress child, death fered as a result of the to her Britnie compensable holding pursuant Lee, is not OB-GYN II). (Littleton [supra] vs. Assoc. reasoned: trial court Bridget physical injuries Because Lee the sub- sustained ject may accident, recover for emotionаl auto she However, distress. those limited to *5 Bridget Lee suffered and or, not due to the daughter death that her suffered. The emotional distress damages Bridget seeking solely Lee is in this case are based upon therefore, death of her child and are not recoverable. parties stipulated significant physical
As the that Lee suffered daughter’s and emotional death collision, out of this automobile and the same force which daughter, Lеe also killed her entitled, she is under law, to recover for all she has incurred from this tortious including conduct, the emotional distress she suffered as a result of witnessing the death of her child in this same incident. The trial majority precedent court and the misconstrued established conjunction prior Georgia Littleton cases which must be read in with law this area. In Jackson, Southern R. v.Co. SE
(1916), Supreme our Court affirmed that a mother could pain injury recover for mеntal related to to her physical child, when she herself is also a tort, victim of the but not otherwise. Judge Beasley, citing supra, As Jackson, stated in her
special Albany, concurrence in Littleton v. OB-GYNAssoc. of (Littleton [at App. I), supra] “Georgia long C.,P. 192 636, Ga. ago recognized pain that a mother could recover for mental (nervous fright) shock, related to to her child when she herself is also a victim of the tort.” Judge Beasley’s special cоncurrence was cited with approval by Supreme Albany our Court in OB-GYNAssoc. (Littleton “(w)e [at supra] II), Littleton, v. agreement Judge Beasley’s reasoning concurring with in her opinion in this case.” Carter, Thomas v. Ga. provide legal guidance, While they the Littleton cases some do holding factually distinguishable.
not control the in this case and are majority opinion separate such, As jurisprudential conflates two by using daughter doctrines cases, the Littleton in which mother and injured by separate authority were deciding forces, as direct the the present injured by case, in which mother and were same force. delivery involved room situation in which the mother by separate and child were not force, but acts of
malpractice. negligent a mother sued her doctors for improper delivery of a caused infliction of emotional distress full-term mother and mother and impact, baby. sepаrate injuries involved, to the Because the Two were separate injury to the child after birth. the same force or child did not receive their emotional dis- mother’s claim for infliction of satisfy rule and not allowed. the “common force” was tress did danger” II “zone of Court in Littleton held that the recovery permit for emo- or “fear for another” rules *6 recog- by injury to another are not tional distress one who witnesses right Georgia. a in then discussed whether there is nized Court parents present not when of action for emotional distress available negligence injuries upon child due the of a are inflicted their holdings Supreme approved of this Court defendant. The Court Appeals Grossman, 24 Court of of New York in Tobin v. and of the 419) (1969), requiring only 554, 249 NE2d NY2d 609 that in NYS2d parent the actions of the defendant must be directed toward the recovery parent’s a for the order to authorize by supra. II, their causеd to or death of child. Littleton parent It that a common force which both is clear against requirement that the action be directed child satisfies the parent. logical conclusion, There is as the Court no other supra, approval Jackson, II cites with Southern R. Co. v. mangling which denied to a mother who witnessed negligence, the mother her child from defendant’s because injured by was not herself the same force which her child. supra, Co., In Southern R. the court held that where a woman suffers a severe nervous shock from the death of her child being by engine, personal injury, from she is not run over an but sustains no
entitled to recover. prerequisites allowing us, In the case now before all mother’s claim for emotional distress have satisfied. The mother been injured by impact by physically was caused the collision with the impact injuries defendant’s car. That same caused to the mother’s Finally, child. tress that same caused the dis- mother’s emotional
by forcing daughter’s injuries. short, her to In one witness impact, injuries by defendant, case, caused involved in and all of the was this by directly precipitated
claimed the mother were this impact. negli- claim such, As mother’s the defendant gent appropriate. infliction of emotional distress is supports supra, Carter, Thomas,
Thomas v. this result. the as the pregnancy who, was a woman in her month of sevеnth collision, result of a car unborn child. The child died mental the sustained to herself and to her sued for her útero, and the mother arising the child’s death. This Court held that out of “[t]he claim to both the mother’s was actionable because mother and the fetus was caused the direct force to the mother the automobile collision which resulted in the in útero death of the Likewise, fetus.” Id. at 387. in the hand, case at mother and force, were and the mother’s claim for emotional distress should be allowed. although Georgia’s wrongful that, It must be noted death stat- generally parent
utes control the remedies available to a for the death of a child, such statutes do not control in Here, this instance. parent suing herself, inflicted on inflicted parent suing recompensed on her child. The of the child’s life. is not to be for the value pursuing remedy Instead, she is for her own suf- fering. Accordingly, being the claim made fаlls outside the ambit of wrongful death statutes. recovery parent’s It is clear under law that for a emo-
tional distress out of to the child of such paradoxical authorized under the “commonforce”rule. It would be damages may then hold that such not be recovered for the most injuries, severe of such the death of a child. For all the reasons set above, forth Lee should be allowed to sue for her deny emotional distress. To hold otherwisе would be to a fun- — damental tenet of the law of torts that a tortfeasor should be held responsible reasonably consequences for the foreseeable of his or her analyzed tortious biolog- conduct. Whether from ethical, an moral, or *7 perspective, parent ical it is axiomatic that a who witnesses the injury or death of his or her child will suffer trauma and shock. This reasonably trauma, fact, is damages more foreseeаble than other might that be incurred. they Tortfeasors take their victims as find them.
[I]t long has been the rule that a tortfeasor takes a in whatever condition he finds him. “A actor must liability by bear the risk that his will be increased reason of the actual condition of the other toward whom his (2d) [is] negligent.” act § Restatement of Torts, 461, Com- (1965). ment a Coleman v.Atlanta &c., Obstetrics Ga.
It is foreseeable that adults will have children. We do not allow a tortfeasor to assert that he could nоt foresee that his car wreck vic- years tim would be 80 per- old and suffer more than another impaired by age son foreseeability would have suffered. The argument simply up. happen. does not stand Children greater injury No can be inflicted than to force a to watch preclude recovery his damages by or her child par- die. To for such out on ent of an to his her child the basis that a par- This, ent is might fraudulently feign unsupportable. mental distress — hоwever, is the reason the by rule to reduce fraud limit- ing Georgia those who recover. has softened harshness of may by allowing parents physically injured by law who also their force child to recover for their emotional distress from the While Georgia their child. continues to “impact rule,” recovery follow the under of this is facts case authorized under law.
2. appellant’s We also address second enumeration error which is by not considеred The trial majority. court also erred ruling that State Farm any liability satisfied it owed to Lee for her $25,000 paying out for the death of wrongful Lee’s pursuant policy. insurance The policy question limits liability in terms of each person each injured and accident which occurs.
Under “Each Person” is the amount of coverage for all dam- ages due to bodily injury to one person. “Bodily injury to one includes all person” damages injuries to others resulting bodily from this injury. Under “Each Accident” is total amount of coverage, subject to the amount shown under Person”, “Each for all due to bodily injury to two or more persons in the same accident.
State Farm contends that because it has paid the “per person” limit wrongful for the death of Lee’s daughter and because Lee’s action for emotional distress is death, derivative her daughter’s it has satis- fied its obligations under the policy. This is contention as misplaced, State Farm’s policy cannot be isolation, considered in but must be interpreted conjunction with Georgia’s uninsured motorist legisla- tion. of uninsured purpose legislation motorist
require some provision for first-party coverage insurance facilitate indemnification who person legally entitled to recover from an uninsured *8 motorist, and to thereby protect innocent victims from the negligence of irresponsible drivers. Uninsured motоrist stat- utes are remedial nature and must be broadly construed accomplish to the legislative purpose.
(Citations omitted.) and punctuation Doe, Smith v. App. 264, 265-266 (a) (1)
OCGA 33-7-11 provides: § liability pol- liability policy vehicle or motor No automobile icy to of this state the owner or delivered shall be issued by any insurer or delivered or shall be issued such vehicle princi- upon vehicle then state motor licensed in this garaged principally pally it cоn- used in this state unless or undertaking pay provisions the or tains an endorsement insured all sums legally entitled recover be which he shall operator of an uninsured from the owner as statutory] [certain limits. vehicle, enumerated motor within “ (b) (A) (1) ‘Bodily injury’ states, include § shall OCGA 33-7-11 Reading bodily injury.” motorist uninsured death coverage, broadly must, we Lee’s emotional favor of as statute distress statutory definition has excluded not been bodily injury legislature therefore, to her and, should bе considered policy’s per person meaning such, As of the statute. within limitation with not include Lee’s daughter regard Lee’s does received Accordingly, payment separate State claims. Farm’s satisfy person” “per limits does not its obli- for Lee’s of the gations for emotional distress claims. Lee’s grant above, sum- the trial court’s
For all the reasons set forth judgment mary should be reversed. to defendants Judge Judge I Ruffin Barnes am authorized state join in this dissent. April 1, 1999 Decided — 30, 1999 Cert. applied for.
Reconsideration denied June Ward, McGehee, Lanham, H. William C. Johnson & Clark appellants. Cooper Associates, Turner-Hawkins, & Associ-
Allen & Twanda Craig Avery, appellees. ates, C. MARSHALLv. WHALEY.
A99A0168. Judge. Barnes, summary appeals grant judgment Ken- Linda Marshall family purpose Whaley on her him under neth W. claims in an After she was involved and automobile accident against entrustment doctrines. Whaley, Eric filed suit
with Thomas Marshall Whaley. Whaley father, Eric and his Kenneth W. Thomas Whaley complaint alleged was liable his that Kenneth Marshall’s