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Recovery Of Emotional Distress Damages For Negligent Acts

The following is quoted from Presiding Judge Doyles opinion in Oliver v. McDade, 328 Ga.App. 368 (2014):

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 McDades 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 Woods trailer and McDades 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 the trucks cab, and propelled blood and tissue from Woods body onto McDade. McDade then got out of his truck, discovered Woods mangled body lying partially in the road, and protected it from further damage by passing vehicles until emergency personnel arrived.

This was the evidence in that case, construed in favor of the plaintiff, who was opposing a defense motion for partial summary judgment on the issue of whether Georgia law permits a plaintiffs recovery of damages for emotional distress under these circumstances. In a whole court decision, the Court of Appeals affirmed the trial courts denial of that motion for partial summary judgment, but not without some significant differences of opinion among the judges as to how, and whether, to reach that result.

Going back to 1892, as noted by the Supreme Court in Lee vs. State Farm Mut. Ins. Co., 272 Ga. 583 (2000), Georgia has followed the impact rule, which has three elements that normally must be satisfied in order to recover damages for emotional distress: (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 plaintiffs mental suffering or emotional distress.

Like most rules, however, and in this case, perhaps more than most rules, the courts have recognized exceptions over the years. In Lee, for example, a mother was driving with her daughter when their car collided with a hit-and-run driver, and that mother had to watch her daughter suffer and die as a result. In that case, the Supreme Court allowed her to recover damages for the emotional distress from witnessing her daughters suffering and death, even to the extent that that particular mental suffering did not arise from the mothers own physical injuries. The fact that the mother was physically injured in the same accident was enough in those circumstances to satisfy the impact rule.

Another avenue to recover emotional distress damages, aside from the impact rule, is the pecuniary loss rule. As noted in Nationwide Mut. Fire Ins. Co. v. Lam, 248 Ga.App. 134 (2001), a plaintiff may, indeed, recover damages for emotional distress flowing from a defendants 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. In Lam, the plaintiff was involved in a motor vehicle collision, and suffered no physical injuries, but did sustain an aggravation of a preexisting psychiatric condition. Based on that aggravation of mental illness, and the pecuniary loss arising from her medical bills for treatment and the property damage to the car, the Court of Appeals held that the pecuniary loss rule had been satisfied and the plaintiff could recover.

Returning to the recent case of Oliver v. McDade, the majority opinion of the Court of Appeals in that case, in Division 1, held that based on the record, there was, at the very least, a question of fact as to whether any claimed emotional distress damages arose solely from McDade witnessing his friends death, or from his own injuries, and for that reason, summary judgment was not appropriate. That same majority opinion, in Division 2, went on to hold that the plaintiff could recover under the pecuniary loss rule because of identifiable mental injuries such as depression and anxiety and the cost of medical treatment for those injuries.

While all but one of the Court of Appeals judges in Oliver concurred in the judgment affirming the denial of summary judgment, only 6 judges concurred in Division 2 of the opinion holding that the pecuniary loss rule applied. Judge Andrews wrote a detailed dissent, in which he argued that the majority opinion 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.

The Supreme Court granted certiorari in Oliver, and issued its opinion on May 11, 2015. In a unanimous decision, the Court affirmed Division 1 of the Court of Appeals opinion, holding that a question of fact remained regarding the allocation of the plaintiffs emotional distress damages and the source of those damages, and thus summary judgment was not appropriate, however, the Court vacated Division 2 of the lower courts opinion holding that a decision on whether the pecuniary loss rule applied was premature given the state of the evidence.

The ultimate outcome of Oliver remains to be seen, but to say that someone like McDade, who watched his friend crushed by a tractor-trailer, who was hit by his friends blood and tissue, and who had to guard his friends mangled body in the road until help arrived, should not be compensated for the emotional trauma arising from those events, when those events were caused by someones negligence, would be a harsh result, and the fact that the impact rule can lead to results like that is one of the reasons it has been criticized over the years. The courts have tried to avoid the harshest results, but at the same time, have declined to abandon the impact rule. Thus, to this day, there remains in the courts decisions a distinct tension between maintaining a reasonable limitation on the scope of liability to those who witness damaging events, and, on the other hand, avoiding the harsh outcome of precluding compensation for a real injury proximately caused by a defendants negligence, simply because it does not arise from a personal physical injury to the plaintiff.

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