We often get calls from upset Georgians asking whether they can sue for purely emotional damages without a physical injury and the answer is usually, “no.” The State of Georgia for over 100 years has decided to draw a bright line distinction between a claim flowing from a physical injury to claims flowing purely from shock, horror, fear or harassment. The public policy behind this thinking is that in the face of a gruesome accident on a street corner, one might have 20 passersby, each filing a lawsuit claiming emotional damages. To ward off this scenario, Georgia Courts fashioned the “impact rule.” With the recent Court of Appeals decision in Oliver v. McDade rendered in July 2014, that may all be changing.
Georgia’s impact rule generally reads as follows; “In 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.” Ryckeley v. Callaway, 261 Ga. 828 (1992)
The rule has three requirements that must be met for a claim for personal injury to proceed: (1) a physical impact to the plaintiff (hitting the dashboard, hitting the ground, the impact of a bullet) ; (2) the physical impact causes physical injury to the plaintiff (there must be a bruise, cut or other medical evidence of a physical injury) ; and (3) the physical injury to the plaintiff causes suffering or distress.
It is the last prong that usually is lacking when callers want to discuss the horror of what they have seen. For example, we had a client who was in a bad accident where his good friend lost his eye and blood went everywhere in the truck. While our client could recover for his own physical injury, he could not recover damages for the horror of seeing his friend hurt.
The law then developed an exception with the Georgia Supreme Court decision in Lee et al. v. State Farm 272 Ga. at 588 (2000) In that case a mother and daughter were involved in a car wreck together. The mother was physically hurt and had to watch her daughter die. The defense moved to prevent the mother from seeking damages flowing from watching the daughter die and claimed that the last prong of the impact rule barred that claim.
The Supreme Court analyzed the history of the rule and carved out a new exception in the face of the absurd. Of course a mother would be separately traumatized for negligence that killed her daughter and she met all of the other criteria under the impact rule. Thus the exception to the impact rule is; you cannot recover for emotional injuries not flowing from a physical injury, except in cases where a parent is injured in the same crash and sees their child die. Recent Federal trial judges have said that the relationship has to be parent to child; that the child must die, not just be terribly injured. Personally I find this ridiculous. Life has taught us that the mental harm is often worse than the corporeal.
Now for the recent development in OLIVER et al. v. McDADE et al. Court of Appeals case number A14A0147.
The majority holding in Oliver says two very odd things: 1) since we cannot tell from the evidence how much of the clinical depression flows from plaintiff’s injuries in the car wreck versus getting his friend’s brains splattered on him, we leave that to the jury and 2) under the pecuniary loss exception, Plaintiff gets to claim purely emotional damages anyway because his property was destroyed in the crash.
There has long been a weird bootstrap called the pecuniary loss exception which allowed emotional damages where your own property was damaged in the same event. The idea being that if you are closely enough tied to the trauma, you can recover. In a blog post in 2010 on this site, I wrote about using the pecuniary impact rule to allow a more appropriate recovery.
The Oliver decision seems to be opening the door even wider to stretch the Lee exception to cover non relatives if there is still an impact and physical injury. It also seems to shore up the pecuniary loss exception. There is a vigourous and lengthy dissent in the case and it seems sure to end up with the Supreme Court, but for now, there may be a clearing of the clouds on this rigid impact rule. Arguably for now, the law in Georgia remains:
1. A physically injured parent can recover for emotional distress from witnessing the death of their child in the same event.
2. A parent cannot recover sue for distress from the death of a child during delivery.
3. A parent cannot sue for emotional distress from witnessing the non-fatal injury of his family members in the same event. McCunney v. Clary 259 Ga. App. 260 (2003)