Torts - Deron R. Hicks and Jacob E. Daly

• Publication year: 2001

Tortsby Deron R. Hicks^* and Jacob E. Daly^**

I. Negligent Infliction of Emotional Distress

In the 1991 decision in OB-GYN Associates of Albany v. Littleton ("Littleton IV"),¹ the Supreme Court of Georgia held that in order to assert a claim for negligent infliction of emotional distress, a plaintiff must prove that he or she was physically injured as a result of a defendant's actions and that any mental suffering or emotional distress was sustained as a result of that physical injury.² Moreover, according to the decision in Littleton IV, a parent could not recover for any mental suffering or emotional distress that the parent suffered as a result of witnessing injuries to his or her child.³ During this survey period, however, in Lee v. State Farm Mutual Insurance Co.,⁴ the Supreme Court of Georgia reversed its decision in Littleton IV to the extent that the prior decision precluded a parent who was physically injured in an automobile collision with a child from recovering for emotional distress from witnessing the child's injuries and subsequent death.⁵

In Lee plaintiff and her daughter sustained physical injuries in an automobile accident caused by an unknown driver.⁶ In the aftermath of the automobile accident, plaintiff "witnessed her daughter's suffering, which ended with her daughter's death an hour later."⁷ Plaintiff subsequently brought suit against her and her husband's uninsured motorist carriers to "recover for her own physical injuries and for the emotional distress that she experienced from witnessing her daughter's suffering and death."⁸ The trial court, however, granted summary judgment in favor of defendants on the claim of negligent infliction of emotional distress. In reliance upon the decision in Littleton IV, the court of appeals affirmed.⁹ On writ of certiorari, the Supreme Court of Georgia reversed.¹⁰

In reversing, the supreme court first traced the history of Georgia's impact rule from the rule's origins in Chapman v. Western Union Telegraph Co. in 1892¹¹ through the decision in Christy Bros. Circus v. Turnage in 1928,¹² and to its present form as set forth in the 1991 decision in Littleton IV.¹³ As the supreme court noted, Georgia's impact rule provided that "'[i]n a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.'"¹⁴ According to the court, the current form of the impact rule "was largely shaped by the 'Littleton' cases, a series of four appeals in a parents' 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."¹⁵ The supreme court in the Littleton IV decision held unequivocally that any potential award of damages to the mother in [a] malpractice claim for her injuries was limited to compensation for any physical injury she suffered as a result of the alleged negligence and any mental suffering or emotional distress she sustained as a consequence of her physical injuries, but that any mental suffering or emotional distress that the mother suffered as a result of injuries to her child was not compensable.¹⁶

The supreme court in Lee noted that the 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."¹⁷ As acknowledged by the supreme court, however, "[i]t is plain that the last element is lacking in the case at bar."¹⁸ The court then reviewed the three policy reasons traditionally set forth as the basis for the impact rule:

First, there is the fear, that absent impact, there will be a flood of litigation of claims for emotional distress. Second, is the concern for fraudulent claims. Third, there is the perception that, absent impact, there would be difficulty in proving the causal connection between the defendant's negligent conduct and claimed damages of emotional distress.¹⁹

The court found, however, that these policy concerns were simply not valid in the context of a claim for negligent infliction of emotional distress.²⁰ Although the court agreed that the impact rule 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 than rules employed in other jurisdictions, the court nonetheless expressed its concern over the applicability of the impact rule under the circumstances of the case before the court.²¹

Notwithstanding those concerns, the court refused to reject the impact rule as a whole.²² In particular, the court noted that "it would be imprudent to abandon over a hundred years of Georgia precedent," and refused to "create a separate tort allowing the recovery of damages for the negligent infliction of emotional distress."²³ Nonetheless, the court held that

[w]hen, as here, 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.²⁴

According to the court, this revised rule is "in accord with precepts of the impact approach and appropriately restricts the recovery to those directly affected by the defendant's negligent act or omission."²⁵ The court therefore held that "[t]o the extent that the Littleton cases, their predecessors, and progeny bar recovery for the parent's claim of emotional distress in circumstances like the present by requiring that the emotional distress stem from the parent's own physical injury, they will no longer be followed."²⁶

In the aftermath of the supreme court's decision in Lee, the court of appeals further expanded the right of recovery for negligent infliction of emotional distress in Nationwide Mutual Fire Insurance Co. v. Lam.²⁷ In Lam plaintiff brought suit against her uninsured motorist carrier after an automobile collision between plaintiff and an under-insured driver. Although plaintiff did not suffer any physical injuries as a result of the accident, it was plaintiff's position that the accident aggravated a pre-existing mental illness. As a result of the aggravation of plaintiff's pre-existing mental illness, plaintiff incurred medical expenses exceeding twelve thousand dollars. Defendant moved for summary judgment on the basis that plaintiff's claim was precluded by Georgia's impact rule in that plaintiff suffered no physical injury as a result of the accident. The trial court denied defendant's motion for summary judgment.²⁸ On appeal, the court of appeals affirmed.²⁹

The court of appeals noted that, according to the supreme court's 1989 decision in OB-GYN Associates of Albany v. Littleton ("Littleton IT'),³⁰ recovery for negligent infliction of emotional distress was limited to two situations.³¹ First, damages for the negligent infliction of emotional distress are recoverable when an impact results in physical injury.³² Second, "a plaintiff may recover damages for emotional distress based upon an injury to property that results in pecuniary loss if injury to the person is also present, even if that injury is not physical."³³

According to the court of appeals, the second situation "is not part of an 'impact rule,' because a trespass that causes a pecuniary loss does not necessarily involve an 'impact.'"³⁴ In reviewing the record, the court of appeals held that plaintiff clearly suffered a pecuniary loss in the form of substantial medical bills.³⁵ Moreover, "although [plaintiff] suffered no physical injury, she did suffer an injury to her person, consisting of aggravation of her preexisting mental illness, which before the collision had been stable for years."³⁶ As such, the court of appeals rejected the argument that the injury to a person seeking to recover damages for emotional distress based upon a pecuniary loss is limited to damage to reputation.³⁷

Similar to the discussion by the supreme court in Lee, the court of appeals in Lam also found that the policy reasons which have been traditionally set forth in support of strict application of the impact rule simply did not apply in the case at hand.³⁸ The court of appeals held that plaintiff's

mental injury can be well documented and proved .... No fear need exist that a flood of litigation or fraudulent claims will result, and the

causal connection between aggravation of an existing mental illness and a traumatic event such as the collision here is at least as susceptible of expert medical proof as many physical soft tissue injuries.³⁹

In this respect, the court of appeals noted that its "holding is . . . consistent with the more liberal approach that appears to be required of us by the Supreme Court's holding in Lee."⁴⁰

II. Premises Liability

A. Static Defects

In the 1997 decision in Robinson v. Kroger Co.,⁴¹ the Supreme Court of Georgia held that, except in the most extraordinary of cases, the issue of whether an invitee failed to exercise ordinary care for his or her own safety in avoiding a foreign substance was a question for the jury.⁴² In the 1998 decision in Freyer v. Silver,⁴³ the Court of Appeals of Georgia extended the supreme court's decision in Robinson to include cases arising from static defects.⁴⁴ During this year's survey period, in Christensen v. Overseas Partners Capital, Inc.,⁴⁵ the court of appeals again extended the holding in Robinson to include premises liability cases involving static defects in which the invitee had previously traversed the allegedly defective area.⁴⁶

In Christensen plaintiff parked her car in a parking deck owned by Overseas...