OLIVER et al. v. McDADE et al.
A14A0147
COURT OF APPEALS OF GEORGIA
July 16, 2014
328 Ga. App. 368 | 762 SE2d 96
This is аn interlocutory appeal from the trial court‘s denial of a defense motion for partial summary judgment on the issue of whether the plaintiff in a personal injury action arising from a motor vehicle collision may recover damages for emotional distress under Georgia‘s “pecuniary loss” rule. Because there exist genuine issues of material fact and the trial court did not err as a matter of law, we affirm.
Summary judgment is appropriate only if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgmеnt as a matter of law.”1 On appeal from the denial of summary judgment, our review is de novo, and we construe the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving party.2 “Moreover, we will affirm a trial court‘s denial of a motion for summary judgment if it is right for any reason.”3
So construed, the evidence shows that John McDade was riding as a passenger in his own truck, which was being driven by his close friend Matthew Wood on I-16 in Dublin, Georgia. McDade, Wood, and others were returning home late at night from a dirt car race in which Wood had competed, and Wood was towing his race car on a trailer behind McDade‘s truck. Just after driving the truck down the on-ramp onto the interstate, Wood noticed that something on the trailer was not secured, and he pulled over to the shoulder. Wood then exited the truck and walked back toward the trailer.
A tractor-trailer owned by Crider Transportation and operated by Jerome Oliver swerved onto the shoulder and struck Wood‘s trailer and McDade‘s truck. Wood was crushed between the trailer and the truck and killed instantly. The impact threw McDade against the interior of his truck, shattered the glass in the rear of thе truck‘s cab, and propelled blood and tissue from Wood‘s body onto McDade. McDade then got out of his truck, discovered Wood‘s mangled body lying partially in the road, and protected it from further damage by passing vehicles until emergency personnel arrived.
Due to the collision, McDade has suffered neck, back and knee injuries, as well as headaches, insomnia, flashbacks, anxiety, depression and suicidal thoughts. He sought psychiatric help, was diag
Based оn the collision, McDade brought a negligence claim against Oliver, Crider, and Crider‘s liability insurance carrier. The defendants sought partial summary judgment on any of McDade‘s claims based on emotional distress arising from having witnessed the injuries to Wood. The trial court initially granted the defendants’ motion, ruling that Georgia‘s impact rule bars bystanders from recovering damages for emotional distress resulting from witnessing another person‘s injuries, but later the trial court granted a motion for reconsideration, finding that McDade could pursue a claim for emotional distress under the pecuniary loss rule. This Court grantеd the defendants’ application for interlocutory review, and this appeal followed.
1. It is undisputed that this case involves a collision resulting in physical injury to the plaintiff. Despite the defendants’ characterization of McDade‘s claims as including emotional distress solely resulting from viewing his dead friend, McDade‘s complaint simply asserts a straightforward negligence claim and alleges that “all of his injuries, damages and suffering were the direct result of and proximately caused by the negligence of the Defendants.” The complaint does not seek to separately recover for the emotional distress McDade experienced from witnessing his friend‘s suffering and death, nor does it parse out certain portions of damages that specifically arise therefrom. Further, McDade‘s deposition testimony does not establish that a discrete portion of his emotional distress was due to the traumatic experience of viewing his friend‘s remains. Rather, when asked whether his emotional problems were a result of “what you saw that night or . . . your own injuries,” McDade replied, “I guess you‘d say both.” When pressed for clarification, McDade explained, “I don‘t know how to answer that. . . . It was being hurt, and then — being hurt, not being at work. I stopped getting paid in February. I haven‘t had income since. . . .” Thus, neither the complaint nor McDade‘s deposition testimony sets out any facts showing that a portion of his emotional distress arises solely from witnessing the injuries to his friend or could be apportioned to his nonphysical injuries as opposed to his physical injuries. At the very least there is a question of fact on this issue; therefore partial summary judgment is not appropriate at this time.
2. Nevertheless, to the extent that making such a distinction is possible based on the evidence in thе case, McDade can recover
a plaintiff may . . . recover damages for emotional distress flowing from a defendant‘s negligence, notwithstanding the absence of physical injury. But these damages are recoverable only if the plaintiff has suffered a pecuniary loss and has suffered an injury to the person, albeit not physical.5
The requirement of an identifiable injury imports an objective benchmark that a plaintiff must meet before recovering emotional distress damages. This objective benchmark safeguards against the dissent‘s concerns that subjective emotional distress damages may be invented out of whole cloth.6
Here, we have evidence of identifiable nonphysical injuries (including an episode of depression) as well as pecuniary loss (the cost of medical treatment arising from the depression). Therefore, the trial court correctly determined that McDade can seek emotional distress damages under the pecuniary loss rule.7
Judgment affirmed. Ray, J., concurs. Phipps, C. J., Barnes, P. J., Miller and McFadden, JJ., concur fully and specially. Boggs, J., concurs specially and in judgment. Dillard, Branch and McMillian, JJ., concur in Division 1 and in judgment. Andrews, P. J., dissents.
I agree with most of what the majority has written. I disagree only with the language at Division 2, notes 5 and 6, which undertakes to disapprove prior case law. That undertaking is not necessary to our decision, and that language is therefore dicta. The ruling on appeal is the trial court‘s determination that McDade may pursue a claim for emotional distress under the pecuniary loss rule. That ruling was correct and should be affirmed.
Damages for negligent infliction of emotional distress are usually not recoverable. But the impact rule and the pecuniary loss rule authorize recovery for such damages. “A claim for emotional distress damages caused by negligence must be supported by evidence that the plaintiff suffered an impact resulting in physical injury or pecuniary loss resulting from an injury to the person.” Travis Pruitt & Assocs., P.C. v. Hooper, 277 Ga. App. 1, 5 (625 SE2d 445) (2005).
The impact rule, generally speaking, authorizes recovery for emotional distress in negligence actions where the emotional distress is caused by a physical injury. “The current Georgia impact rule has three elements: (1) a physical impact to the plaintiff; (2) the physical impact causes physical injury to the plaintiff; and (3) the physical injury to the plaintiff causes the plaintiff‘s mental suffering or emotional distress.” Bruscato v. O‘Brien, 307 Ga. App. 452, 456-457 (1) (705 SE2d 275) (2010) (citations and punctuation omitted).
The pecuniary loss rule allows recovery for emotional distress in a negligence action even though there may be an injury to the person that is not physical.
In cases where mere negligence is relied on, before damages for mental pain and suffering are allowable, there must also be an actual physical injury to the person, or a pecuniary loss resulting from an injury to the person which is not physical. . . . We reiterate the rule that for a pecuniary loss to support a claim for damages for emotional distress, the pecuniary loss must occur as a result of a tort involving an injury to the person even though this injury may not be physical. An injury to the reputation would be such an injury.
OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 666-667 (2) (B) (386 SE2d 146) (1989), disapproved in part on other grounds, Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 588 (III) n. 8 (533 SE2d 82) (2000) (citation omitted; emphasis in original).
Likewise, in the instant case, in addition to the damage to his vehicle and his оwn physical injuries, there is evidence that after the collision McDade has suffered mental injuries, including major depression, and that he is under psychiatric care for such injuries. Accordingly, he may pursue his claim for emotional distress damages arising from his mental injuries. See Lam, supra at 138 (2) (plaintiff suffering nonphysical injury to the person may recover damages for emotional distress flowing from defendant‘s negligence). The trial court therefore did not err in denying partial summary judgment based on the pecuniary loss rule. See generally Lee, supra at 588 (III) (reversing summary judgment to defendants by holding that parent could seek to recover for emotional distress from witnessing death of child from automobile collision “without regard to whether the emotional trauma arises out of the physical injury to the parent“).
Contrary to the dissent‘s claims, affirming the trial court‘s ruling does not “eviscerate[ ] the impact rule, permit[ ] litigants to routinely obtain damages for emotional distress without physical injury, [or] impermissibly suppl[y] a remedy where none existed before.”
As recounted above, our Supreme Court has established that under the pecuniary loss rule, a claim for emotional distress damages will lie where the loss occurred as a result of “an injury to the person even though this injury may not be physical.” OB-GYN Assoc., supra at 667 (2) (citation omitted). Lam, supra, correctly applied this rule to allow for emotional distress damages where the nonphysical injury to the person was a mental illness. In all material respects, Lam is factually identical to, and mandates the holding in, the instant case. Indeed, the dissent, by resorting to the argument that we should overrule Lam, which the Supreme Court previously declined to review on certiorari, implicitly recognizes that Lam is directly on point and constitutes controlling authority.
Likewise, in the factually similar case of Lee, the Supreme Court held that when
a parent and child sustain a direct physical impact and physical injuries through the negligence of another, and the child dies as the result of such negligence, the parent may attempt to recover for serious emotional distress from witnessing the child‘s suffering and death without regard to whether the emotional trauma arises out of the physical injury to the parent. This is in accord with the precepts of the impact approach аnd appropriately restricts recovery to those directly affected by the defendant‘s negligent act or omission.
In reaching this decision, the Supreme Court recounted the history and policy behind the impact rule, and concluded that despite the traditional impact rule, there is no meritorious reason to refuse to extend recovery for emotional distress in an appropriate and compelling situation such as the one in that case. Lee, supra. While Lee did not discuss the pecuniary loss rule and involved a parent and child, rather than close friends, it is otherwise similar to this case and its holding is instructive. There is evidence in this case showing that both McDade and Wood sustained a direct physical impact and physical injuries through the negligence of another, and that Wood died as a result of such negligence. Thus, as in Lee, and contrary to the claims of the dissent, this is the sort of compelling situation in which allowing McDade to recover for serious emotional distress from
BOGGS, Judge, concurring specially and in judgment only.
The trial court in this case correctly denied the defendants’ motion for summary judgment, but I do not agree with all that is said in the majority‘s opinion and Judge McFadden‘s special concurrence. I therefore concur specially and in judgment only.
I agree with the majority‘s conclusion that “neither the complaint nor McDade‘s deposition testimony sets out any facts showing that a portion of his emotional distress arises solely from witnessing the injuries to his friend or could be apportioned to his nonphysical injuries as opposed to his physical injuries.” In my view, the indivisibility of McDade‘s emotional injury resulting from a single physical impact in which he was also physically injured places this case within the scope of recovery allowed by the impact rule. See Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 588 (III) (533 SE2d 82) (2000).
I also agree with the analysis in Judge Andrews’ dissent regarding the pecuniary loss rule and its inapplicability to the facts presently beforе us.
ANDREWS, Presiding Judge, dissenting.
For over one hundred years, through the application of the “impact rule,” Georgia‘s courts have rejected steadfastly attempts to award damages for the negligent infliction of emotional distress unaccompanied by physical injury. See OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 666 (2) (B) (386 SE2d 146) (1989) (“Littleton II”); Chapman v. Western Union Telegraph Co., 88 Ga. 763 (15 SE 901) (1892); Owens v. Gateway Mgmt. Co., 227 Ga. App. 815, 816 (490 SE2d 501) (1997). Today‘s decision, under the guise of the “pecuniary loss” rule as applied in Nationwide Mut. Fire Ins. Co. v. Lam, 248 Ga. App. 134 (546 SE2d 283) (2001), eviscerates the impact rule, permits litigants to routinely obtain damages for emotional distress without physical injury, and, by doing so, impermissibly supplies a remedy where none existed before. Because I conclude that Lam was wrongly decided and should bе overruled, and because I believe that we should therefore reverse the trial court‘s order denying the defendants’
1. At the core of today‘s decision is the majority‘s and Judge McFadden‘s special concurrence‘s reliance upon, and unprecedented and unauthorized expansion of, the pecuniary loss rule. The rule, articulated in Kuhr Bros. v. Spahos, 89 Ga. App. 885, 890 (81 SE2d 491) (1954), provides:
In cases where mere negligence is relied on, before damages for mental pain and suffering are allowable, there must also be аn actual physical injury to the person, or a pecuniary loss resulting from an injury to the person which is not physical; such an injury to a person‘s reputation, or the mental pain and suffering must cause a physical injury to the person.
(Emphasis in original.) See also Littleton II, supra, 259 Ga. at 667 (2) (B); Phillips v. Marquis at Mt. Zion-Morrow, LLC, 305 Ga. App. 74, 77 (699 SE2d 58) (2010); Owens, supra, 227 Ga. App. at 815. Stated differently, “for a pecuniary loss to support a claim for damages for emotional distress, the pecuniary loss must occur as a result of a tort involving an injury to the person even though this injury may not be physical.” Littleton II, supra, 259 Ga. at 667 (2) (B) (emphasis supplied). A key limitation on the pecuniary loss rule is that where there is an injury to property alone, “there can be no recovery for mental suffering.” Id. See also Kuhr Bros., supra, 89 Ga. App. at 890.9
This case is controlled by our decision in Owens, supra, 227 Ga. App. at 815. In Owens, two armed gunmen forced their way into the
In this case, the same principles apply. As in Owens, the plaintiff‘s claim for emotional distress, related to events following the collision, “is not of the same type as that referred to in [Littleton II] because it is itself a form of emotional distress damage as opposed to pecuniary loss” resulting from a tort “involving an injury to the person.” Owens, supra, 227 Ga. App. at 816. In other words, the plaintiff cannot show the nonphysical injury that he suffered as a result of the defendants’ negligence is anything other than the same emotional distress for which he seeks to recover. It follows that the plaintiff may seek damages for his emotional distress, if any, arising from the personal injuries he sustained.10 Absent any separate tort involving an injury to his person, however, he may not seek damages for emotional distress from witnessing the death of his friend and its aftermath. Owens rejected the circular reasoning adopted in Lam and endorsed by the majority and Judge McFadden‘s special concurrence, holding that it would “allow bootstrapping of an extreme nature.” Owens, supra, 227 Ga. App. at 816.
2. In permitting a plaintiff to seek damages for negligently caused emotional distress in the absence of physical injury, Lam failed to address the prior holding in Owens.11 Lam and her husband were invоlved in an automobile accident in which her vehicle was damaged. Lam, supra, 248 Ga. App. at 135. Although Lam‘s husband was injured, Lam did not sustain any physical injury; however, she alleged that the accident aggravated a preexisting mental illness, the
(a) As a result, Lam was wrongly decided for three reasons: (1) Lam improperly cited the holding of Littleton II as noted above and shifted its focus to whether property damage was sustained; (2) it abandoned the traditional notion of what is encompassed by the phrase “pecuniary loss resulting from an injury to the person which is not physical; such an injury to a person‘s reputation,” Littleton II, supra, 259 Ga. at 666 (2) (B) (“An injury to the reputation would be such an injury.“); Phillips, supra, 305 Ga. App. at 77; Owens, supra, 227 Ga. App. at 815; and (3) it wrongly applied the pecuniary loss rule. The first of these has already been discussed.
(b) Second, although the primary example of an injury to the person that is not physical has been damage to reputation, this is not an exhaustive listing. Additional possibilities are suggested in Hubbard v. Ruff, 97 Ga. App. 251, 253 (103 SE2d 134) (1958) and Hutcherson v. Durden, 113 Ga. 987, 989-990 (39 SE 495) (1901). In Hubbard, this Court construed “personal tort” as used in the interspousal immunity statute as “one involving or consisting in an injury to the person or to the reputation or feelings, as distinguished from an injury or damage to real or personal property.” 97 Ga. App. at 253. Similarly, Hutcherson determined that “injuries done to the person” included “all actionаble injuries to the individual himself” and cited physical and bodily injury, injury to the reputation, false imprisonment, malicious arrest, and injury to one‘s health, in contrast to injury done to the person‘s property. 113 Ga. at 990. Yet Lam focused upon damage to Lam‘s vehicle as a means for recovery for emotional
The impact of Lam‘s fixation on property damage is highlighted in its progeny. See Grizzle v. Norsworthy, 292 Ga. App. 303, 306 (664 SE2d 296) (2008); Shores v. Modern Transp. Svcs., Inc., 262 Ga. App. 293, 295 (1) (585 SE2d 664) (2003). Both Grizzle and Shores involved actions for emotional distress by train engineers following collisions with vehicles. In Grizzle, the court cited the pecuniary loss rule mentioned in Lam (“based upon an injury to property,” as opposed to “person” in Littleton II) and concluded that, because the plaintiff had no personal interest in the train or any other property, he could not recover lost income and medical expenses under the pecuniary loss rule. 292 Ga. App. at 306 (2). Likewise, in Shores, in addition to finding no physical injury, the court noted that the plaintiff “failed to show an ‘injury to property’ resulting in pecuniary loss.” 262 Ga. App. at 295 (1). As this Court noted in Jordan, “[a]lthough pecuniary loss may also serve as the basis to recover for emotional distress, the loss must result from an injury to the person, not to property.” 230 Ga. App. at 735. See also Littleton II, supra, 259 Ga. at 667 (2) (B). What is relevant is whether the plaintiff suffered a pecuniary loss resulting from “a tort involving an injury to the person,” either physical or of the sort contemplated by Littleton II. See Harris v. Wall Tire Co., 197 Ga. App. 818 (399 SE2d 580) (1990) (recovery under pecuniary loss rule not permitted where plaintiff suffered property damage and alleged emotional distress, but no personal injury).
(c) Third, Lam wrongly applied the pecuniary loss rule by finding that the medical bills and lost wages incurred by Lam supplied the pecuniary loss for her claim. See Owens, supra, 227 Ga. App. at 816. Just as in Owens, “the only pecuniary loss [in Lam] is that incurred because of medical bills and lost time from work [Lam] allegedly incurred because of emotional distress following the incident” and was not the result of a separate tort involving an injury to Lam. 227 Ga. App. at 816. On this point, Owens is indistinguishable. However, the Lam court essentially bootstrapped Lam‘s damages for emotional distress onto her claim for property damage to provide a recovery in the absence of a separate “tort involving an injury to the person.” For the reаsons stated above, this conclusion was erroneous and should be
3. Finally, this Court does not have the authority, were it so inclined, to expand the remedies available to plaintiffs under our law. See Shores, supra, 262 Ga. App. at 296 (2) (declining to relax the impact rule); McCunney v. Clary, 259 Ga. App. 260, 261-263 (1) (576 SE2d 635) (2003). Only the Supreme Court of Georgia or the General Assembly may do that. See Lee, supra, 272 Ga. at 588; Shores, supra, 262 Ga. App. at 296 (2); McCunney, supra, 259 Ga. App. at 261-263 (1). In fact, the Supreme Court has recognized a single exception to the impact rule. See Lee, supra, 272 Ga. at 587. Presented with the opportunity to reject the impact rule, our Supreme Cоurt specifically reaffirmed it, finding that
the benefits of an impact rule are plain in that it provides a brighter line of liability and a clear relationship between the plaintiff‘s being a victim of the breach of duty and compensability to the plaintiff.
Lee, supra, 272 Ga. at 587 (II). Indeed, the court could not have been more clear when it stated that “we decline to adopt any rule which might, in effect, create a separate tort allowing recovery of damages for the negligent infliction of emotional distress.” Id. at 588 (III). No decision since has further expanded this exception, and it therefore appears the parent/child exception, applicable only when both are injured in the same accident and the child dies from her injuries, remains the lone exception to the impact rule in Georgia. See Shores, supra, 262 Ga. App. at 296 (2) (declining to relax the impact rule); McCunney, supra, 259 Ga. App. at 261-263 (1).
Accordingly, under Georgia law, an injured parent can recover for emotional distress from witnessing the injury and death of her child involved in the same event. See Lee, supra, 272 Ga. at 588. Conversely, a parent cannot recover for emotional distress from the death of a child during delivery. See Littleton IV, supra, 261 Ga. at 664. Nor can a parent recover for emotional distress from witnessing the nonfatal injury of his spouse and his children involved in the samе
In closing, the ruling issued by the majority represents a drastic expansion of the pecuniary loss rule above and beyond any prior limitation by the courts of this state — so much so, in fact, that the impact of the decision is to render meaningless the impact rule. Indeed, of what use is the impact rule if it can be routinely circumvеnted under the majority‘s enlargement of the pecuniary loss rule? As our Supreme Court noted in Lee, “it would be imprudent to abandon over a hundred years of Georgia precedent” to sacrifice the impact rule. 272 Ga. at 588. Yet that is precisely what has been accomplished today.
In view of the foregoing, I do not find that the plaintiff is entitled to recover for emotional distress from witnessing the death of his friend and its aftermath under any existing theory of Georgia law, specifically including the pecuniary loss rule. I further believe that we should overrule Lam inasmuch as it is in conflict with Owens, a controlling precedent of this Court, and is inconsistent with Littleton II, Lee, and our long-standing adherence to the impact rule. We shоuld not further melt down the law in this area.14 As a result, the judgment of the trial court should be reversed and remanded with direction to enter partial summary judgment in favor of the defendants on the issue of recovery under the pecuniary loss rule.
DECIDED JULY 16, 2014 —
McMickle, Kurey & Branch, Scott W. McMickle, Stephanie F. Brown, Weinberg, Wheeler, Hudgins, Gunn & Dial, John K. Train IV, Robert P. Marcovitch, Joshua S. Wood, for appellants.
Katherine L. McArthur, Caleb F. Walker, for appellees.