Lee v. State Farm Mutual Insurance Company: a Partial Exception to Georgia's Impact Rule to Allow Parental Recovery for Emotional Distress from Witnessing the Suffering and Death of a Child - Joseph I. Marchant

• Citation: Vol. 52 No. 2
• Publication year: 2001

CASENOTE

Lee v. State Farm Mutual Insurance

Company: A Partial Exception to Georgia's

Impact Rule to Allow Parental Recovery for

Emotional Distress from Witnessing the

Suffering and Death of a Child

In Lee v. State Farm Mutual Insurance Co.,¹ the Georgia Supreme Court created a partial exception to Georgia's impact rule. The 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 a result of such negligence, the parent may attempt to recover for serious emotional distress from witnessing the child's suffering and death" regardless of whether the emotional distress arises from the physical injury to the parent.²

I. Factual Background

Bridget Lee ("Lee") and her daughter were injured in an auto accident caused by an unknown hit-and-run driver. Lee witnessed her daughter's suffering, which ended in death an hour later. State Farm Mutual

Automobile Insurance Company ("State Farm") and Allstate Insurance Company ("Allstate") were Lee's and her husband's uninsured motorist carriers. They paid the limits for the claim of Lee's daughter's wrongful death. Lee brought suit to recover for her physical injuries and for the emotional distress she experienced as a result of witnessing her daughter's suffering and death. Lee's husband sued for loss of consortium. State Farm intervened on behalf of itself; Allstate defended in the name of "John Doe," the unknown motorist.³

The DeKalb County State Court entered summary judgment for defendants on Lee's claim for emotional distress. Lee appealed, arguing that "Georgia law allow[ed] a mother to recover for emotional distress from witnessing her child's injuries and death where the mother is also physically impacted and injured by the same tortious act."⁴ Based on OB-GYN Associates of Albany v. Littleton (Littleton IV),⁵ the Georgia Court of Appeals affirmed, holding that Georgia's impact rule prevented Lee from recovering for emotional distress caused by witnessing her daughter's injuries and death.⁶ The Georgia Supreme Court reversed the judgment of the court of appeals and remanded the case for further proceedings.⁷

II. Legal Background

Georgia's impact rule allows plaintiff to recover for negligently inflicted emotional distress only when plaintiff has suffered a physical impact, which causes a physical injury that in turn causes the emotional distress.⁸ Georgia's impact rule began with the Georgia Supreme Court's decision in Chapman v. Western Union Telegraph Co.⁹ in 1892. In Chapman plaintiff sought recovery of damages for mental suffering caused by defendant's failure to deliver with due promptness a telegraphic message announcing the impending death of plaintiff's brother. Consequently, plaintiff was unable to reach his brother before his brother died.¹⁰ In affirming the judgment of the trial court and denying recovery to plaintiff, the court stated:

So far as mental suffering originating in physical injury is concerned, it is rightly treated as undistinguishable from the physical pain. On ultimate analysis, all consciousness of pain is a mental experience, and it is only by reference back to its source that one kind is distinguished as mental and another as physical. So in cases of physical injury, the mental suffering is taken into view. But according to good authorities, where it is distinct and separate from the physical injury, it cannot be considered.¹¹

Georgia's impact rule soon became the subject of criticism. For example, fifteen years later in Glenn v. Western Union Telegraph Co. ,¹² the Georgia Court of Appeals recommended that the legislature take action to allow plaintiffs to recover damages for mental suffering absent a showing of physical injury.¹³ In Glenn plaintiff's husband was a Macon police officer who left his home and family in anger. Two days later, plaintiff received through defendant telegraph company a telegram from her husband who was in Memphis. Plaintiff's husband asked plaintiff if he still had a job and advised her to let him know by telegram. Plaintiff sent her husband a telegram through defendant advising him that his position on the police force was still available. Defendant failed to deliver the telegram in a reasonable time. In despair, plaintiff's husband left Memphis, but he did not return home. Plaintiff located her husband nine months later in Fort Worth. Plaintiff's husband returned to Macon and resumed his position as a police officer. The absence of plaintiff's husband forced her to get a job and live for a time apart from her children. Plaintiff sued defendant seeking damages for among other things, mental suffering.¹⁴ The court reluctantly held that Chapman precluded plaintiff from recovering damages for mental suffering.¹⁵ In criticizing Chapman, the court stated:

To our minds it is monstrous that you can recover damages if you sustain loss on your car load of oxen by reason of unreasonable delay or failure to deliver a message relating to this, your property, but if you are summoned to the death-bed of your mother (whose dying blessing you would not exchange for all the cattle upon a thousand hills), and a telegraph company sees fit not to send or deliver the message which might have brought you to her side, you are completely helpless.¹⁶

In 1928, the Georgia Court of Appeals, in Christy Bros. Circus v. Turnage,¹⁷ broadly construed the physical injury requirement of Georgia's impact rule.¹⁸ In Christy Bros. Circus, plaintiff attended a circus performance given by defendant as a guest of defendant. During the performance, a dancing horse ridden by defendant's servant backed toward plaintiff and defecated on her lap. Many people, including some of defendant's employees, laughed at the incident. Plaintiff sued defendant seeking damages for mental pain and suffering.¹⁹ In affirming the judgment of the trial court and allowing plaintiff to seek recovery for mental pain and suffering, the court expanded the impact rule by stating that any unlawful touching, although not causing physical pain, constitutes a physical injury because it violates a personal right.²⁰ The court further stated that "[t]he unlawful touching need not be direct, but may be indirect, as by the precipitation upon the body of a person of any material substance."²¹

The Georgia Court of Appeals, in Kuhr Bros., Inc. v. Spahos,²² noted that an exception to the impact rule exists when plaintiff suffers monetary loss due to a nonphysical personal injury that in turn causes a physical injury.²³ Spahos contracted with Altaian for the purchase of a house. Altaian agreed to supply a furnace for the house and arranged for Kuhr Bros., Inc. to install the furnace. The furnace was allegedly installed with a pipe touching the woodwork. The house burned, and Spahos brought an action for negligence against Altaian and Kuhr Bros., Inc. Spahos sought damages for mental suffering arising from his fear for the safety of his family.²⁴ The trial court overruled defendants' general demurrers, but sustained special demurrers to the allegations of mental suffering.²⁵ In affirming the judgment, the appellate court stated:

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; such an injury to a person's reputation, or the mental pain and suffering must cause a physical injury to the person.²⁶

In Sanders v. Brown,²⁷ the Georgia Supreme Court recognized an exception to the impact rule when malicious, wilful or wanton conduct has been directed at the plaintiff.²⁸ The Sanders and Brown families owned adjoining properties and had a longstanding dispute between them. The Brown property was subsequently purchased at a foreclosure sale by Sanders Farm Services, Inc. ("SFS"), which was owned by John Sanders, Sr. ("Senior") and John Sanders, Jr. ("Junior"). The Browns remained on the property for several weeks. Five members of the Brown family filed a multicount tort complaint against SFS, Senior and Junior. Some of the claims involved a Brown child being sprayed with insecticide from a passing farm machine. The jury found for the Browns on some of the claims and for the Sanders on others. The trial court granted a motion for judgment not withstanding the verdict ("j.n.o.v.") as to Junior, but denied the motion as to Senior and SFS. Senior and SFS appealed from entry of judgment on the verdict. The Browns cross-appealed from the judgment and the j.n.o.v. as to Junior.²⁹ Affirming in part and reversing in part, the court held that the child who was allegedly sprayed with insecticide had a legitimate claim for damages for emotional distress because the evidence would support a finding that this contact was wanton and wilful.³⁰ The court stated that the other Browns could not recover for emotional distress because the wanton and wilful act was not directed toward them.³¹

The current form of the impact rule was shaped largely by the "Littleton" cases,³² a series of four appeals between 1989 and 1991.³³

In these cases, parents filed a "suit for wrongful death, loss of services, and the mother's mental suffering and emotional distress resulting from the allegedly negligent delivery of the parents' infant daughter and the child's death two days later."³⁴ The trial court granted defendants' motion for partial summary judgment as to the Littletons' claim for emotional distress.³⁵

In Littleton I,³⁶ the Littletons appealed from the trial court's grant of partial summary judgment.³⁷ The Georgia Court of Appeals reversed, holding that Georgia's wrongful death statute³⁸ did not preclude the Littletons from seeking damages for emotional distress.³⁹ The court reasoned that the statute was enacted to supplement rather than supplant existing law.⁴⁰ The Georgia Supreme Court granted certiora-ri.⁴¹

In Littleton...