Case Law Update: Supreme Court Reaffirms Grounds For Recovery In Emotional Distress Claims

Georgia law generally, with few exceptions, prohibits a party from recovery of damages for emotional distress arising from witnessing the injuries sustained by another.  This position promulgates Georgia’s adherence to the “impact rule.”  Under the “impact rule”, to recover for emotional injuries, the defendant’s conduct must result in actual bodily contact to the plaintiff.  Ryckeley v. Callaway, 261 Ga. 828, 829, 412 S.E.2d 826 (1992).  Georgia’s 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 is the cause of the plaintiff’s mental suffering or emotional distress.  Bruscato v. O’Brien, 307 Ga. App. 452, 457, 705 S.E.2d 275 (2010).  As can be expected, such a long standing rule does not exist without its exceptions.  In Oliver v. McDade, No. S14G1775, 2015 WL 2168075 (May 11, 2015), the Georgia Supreme Court highlighted and reaffirmed the existence of a recognized exception to Georgia’s impact rule for the recovery of emotional distress, e.g. the existence of a pecuniary loss.

In Oliver, a tractor-trailer swerved onto a shoulder and hit a truck operated by plaintiff, which carried the plaintiff’s acquaintance as a passenger.  After impact, the plaintiff observed his friend’s crushed body lying partially in the road, and the plaintiff protected it from further impact from passing vehicles until the arrival of emergency responders.  Oliver, at *1.  The plaintiff subsequently brought suit against the tractor-trailer driver, its owner and the owner’s insurer.  The plaintiff’s complaint sought recovery for emotional distress as exhibited through insomnia, flashbacks, anxiety, depression and suicidal ideations after shielding his friend’s crushed body.  Id.  The plaintiff additionally sustained physical injuries as a result of the accident in the form of neck pain, back pain, knee injuries and headaches, which also served as a basis for his asserted claims.  The defendants sought and were denied partial summary judgment on the plaintiff’s emotional distress claims.  On interlocutory review, the Court of Appeals affirmed the trial court’s denial of partial summary judgment.  The Georgia Supreme Court affirmed the decision only with regard to the existence of an issue of fact under the pecuniary loss exception.

The Georgia Supreme Court’s affirmance of the potential sustainability of the plaintiff’s emotional distress claim did not extend the grounds for recovery of emotional injuries.  The plaintiff’s claim survived summary judgment because the plaintiff presented sufficient evidence to create an issue of fact that his emotional injuries arose from a tangible pecuniary loss and his own physical injuries sustained in the accident. The case record reflected that the plaintiff testified that his emotional injuries arose, in part, from his own injuries and his inability to work following the accident in addition to witnessing his friend’s death.  Oliver, at *1.  Thus, the record before the Court precluded a ruling as a matter of law that the plaintiff’s emotional distress arose solely from witnessing the injuries to his friend.  As the Court could not make a factual determination as to how to apportion the emotional injury related to witnessing the injury to another from the recoverable basis of emotional distress linked to a pecuniary loss of income, the court affirmed the denial of summary judgment.  Id.  The recognition of the need to allocate the plaintiff’s damages on permissible grounds to recover damages for emotional injuries supports the long standing rule in this State to allow recovery for emotional injuries only in limited circumstances and upon proper proof.

A plaintiff who seeks damages for emotional injuries under the pecuniary loss exception to the impact rule must still show that the pecuniary loss results from the incident that is the subject of the litigation.  Kirkland v. Earth Fare, Inc., 289 Ga. App. 819, 822, 658 S.E.2d 433 (2008).  Additionally, such pecuniary loss must still arise from and be directly connected to an injury to the person, be it mental or physical.  Phillips v. Marquise at Mt. Zion-Morrow, LLC, 305 Ga. App. 74, 76, 699 S.E.2d 58 (2010); Oliver, at *1.


Dawn N. Pettigrew