NADIA ELEY v. FELICIA SIMONE FEDEE ( 2022 )

THIRD DIVISION
DOYLE, P. J.,
REESE and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
February 11, 2022
In the Court of Appeals of Georgia
A21A1513. ELEY et al. v. FEDEE.
BROWN, Judge.
Maretris Eley (“the mother”), in both her individual capacity and as the natural
parent and legal guardian of her twin daughters (Nadia and Naomi), filed a negligence
action against Felicia Fedee following an automobile collision with Fedee. The
mother appeals from the trial court’s grant of partial summary judgment to Fedee on
her daughters’ claims for emotional distress damages. She contends that summary
judgment was inappropriate because (1) the impact rule does not apply to the
negligence claim asserted for her daughters; (2) material issues of fact exist as to
whether her daughters suffered a physical injury in the accident; (3) the pecuniary
loss rule should apply to allow a recovery for monetary expenses incurred on her
daughters’ behalf as a result of the accident; and (4) treating minor and adult
plaintiffs differently violates the Equal Protection Clauses of the United States and
Georgia Constitutions. For the reasons set forth below, we affirm.1
Summary judgment is proper when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We
review a grant or denial of summary judgment de novo and construe the evidence in
the light most favorable to the nonmovant. See Home Builders Assn. of Savannah v.
Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003). So viewed, the record
shows that Fedee admits that she was at fault for an accident in which she pulled her
car in front of the car driven by the mother.2 It is undisputed that the twins were
passengers in the vehicle at the time of the October 28, 2017 accident. The “driver’s
1
We have circulated this decision among all nondisqualified judges of the
Court to consider whether this case should be passed upon by all members of the
Court. Fewer than the required number of judges, however, voted in favor of a
hearing en banc on the question of disapproving Warnock v. Sandford, 349 Ga. App.
426 (825 SE2d 922) (2019).
2
While the mother’s brief asserts numerous other facts surrounding the
accident and its aftermath, the record cites provided are to her brief below, which in
turn cites to various portions of her deposition. The record before us includes only a
six-page excerpt from her deposition. Accordingly, we will not consider facts
supported from portions of the mother’s deposition that are not before us. See
Gramiak v. Beasley, 304 Ga. 512, 516 (I) (C) (820 SE2d 50) (2018) (“Arguments and
representations made in court briefs . . . do not constitute record evidence to support
a finding of fact.”).
2
side front” of the mother’s car struck the “driver’s side rear” of Fedee’s car. Fedee
testified that the collision felt “hard” to her and felt like a seven on a scale of one
(“light tap”) to ten (“just demolished”). Fedee’s speed was approximately 5-10 mph
when she was struck by the mother’s car. There is no evidence of the mother’s speed
before the impact. After the impact, Fedee “blacked out for a little bit.” When she
awoke, her car was facing oncoming traffic, and she drove across multiple lanes of
traffic to a nearby convenience store with bystander assistance. Fedee left the
convenience store in an ambulance; her back was injured in the accident in a way that
cannot be determined from the record before us. A photograph of Fedee’s car after
the accident shows the rear bumper hanging off the back; the trunk of the car appears
to be otherwise intact. A photograph of the mother’s car after the accident shows
damage to the front driver’s side and the hood is buckled. There does not appear to
be any visible fire damage.
In her deposition, the mother testified unequivocally that neither twin suffered
“any physical injury as a result of the accident.” She also stated that they did not have
“any cuts, scrapes, bruises, [or] anything like that.” In her response to an interrogatory
asking for a detailed statement of all injuries, the mother wrote that the twins, who
were nine years old at the time of the accident,
3
were traumatized by the collision. They were each diagnosed with Acute
Stress Disorder and anxiety, and prescribed anti-anxiety medications.
They continue to experience anxiety as passengers, as well as great fear
for their mother’s safety when she is driving or riding in a car.
The mother described her own injuries as follows:
a burn and bruising to her left arm, dizziness, vertigo and nausea, pain
in the right side of her neck, right side of her lower back shooting down
into her right leg, sciatica, and ear pain. She experienced anxiousness as
a result of the incident. She continues to experience right side, lower
lumbar pain.
Over two years after the accident, the mother’s medical expenses totaled $2,712 and
the twins’ therapy expenses totaled $400. The mother made no claim for lost wages
as a result of the accident.
In July 2018, approximately nine months after the accident, the twins saw Dr.
Hopkins-Naylor, “a doctor of psychology,” on two occasions approximately two
weeks apart. Her treatment notes contain no indication of any physical manifestation
of injury from the accident. There is no indication that the twins suffered from rapid
heart rate, chest pain, stomach pain, or headaches. Both girls acknowledged
pretending to be physically ill to avoid riding the school bus. The treatment notes also
indicate that the mother stated: “car caught on fire”; “girls in back seat”; and “mom
4
went to ER - 3rd days [sic].” Nadia stated that she is “sad” the car was “ruined” and
that it “was smoking and the air bag came out” as a result of the accident. Naomi
relayed that “smoke was in the car” and she “had to get out.”
Fedee filed a motion for partial summary judgment, asserting that the impact
rule precluded a negligence claim for the girls because the record contains no
evidence that they were physically injured as a result of the impact.3 In an affidavit
submitted in opposition to Fedee’s motion for partial summary judgment,4 Dr.
Hopkins-Naylor opined that both girls
presented with observable symptoms that included being on edge,
nervousness, and worry. Each of these observable symptoms can create
stress and discomfort on the physical condition of a person. For [the
twins], that was the case. Both . . . described the collision and aftermath
of the collision in terms that can be categorized as acute stress disorder.
The DSM 5 sets the diagnostic criteria for acute stress disorder.
Symptoms can include intrusive thoughts, negative mood, avoidance,
3
The motion did not seek summary judgment on the ground that the mother
also cannot establish that the girls’ emotional distress was caused by a physical injury
sustained in the accident (prong three of the impact rule). See Lee v. State Farm Mut.
Ins. Co., 272 Ga. 583, 584-586 (I) (533 SE2d 82) (2000).
4
This affidavit was executed over two years after Dr. Hopkins-Naylor saw the
twins for what appears to be two visits over a roughly two-week period.
5
and arousal symptoms. Both children met the arousal symptoms with
their hypervigilant behavior, sleep disturbance, and avoidance, such as
not going to school and not getting on the bus. Their intrusive thought
symptoms comprised of distressing memories and flashbacks, which
included thinking about the collision at school and crying about it.
These symptoms began immediately after the collision, and they were
both still talking about the impact when they presented to me. It created
an impairment to their going to school by riding the bus as they had
done in the past and their mother had to drive them to school, where
before she did not have to.
It is my opinion based upon a reasonable therapeutic probability
that both . . . suffered physical symptoms of pain and somatic pain as a
result of the collision, as well as emotional harm.
In addition to providing her specific opinion with regard to the twins, she averred:
When discussing their traumas, children and adults can experience
rapid escalation or changes in mood; crying, anger, anxiety, or
irritability; fear; hopelessness; and other psychological changes that can
directly create a painful response in their bodies physiologically. One
often hears of a bereaved person after the death of their loved one state
that their chest hurts. Symptoms that indicate such physical-pain-
inducing sensations include rapid heart rate; somatic pain such as
stomach pain; chest pain, and headaches.
6
Nowhere in her affidavit does she state the specific physical pain suffered by the
twins at any time after the accident.
With regard to her professional background, Dr. Hopkins-Naylor stated that she
worked for the Georgia Center for Child Advocacy for five years providing “trauma-
informed psychotherapy to child victims of sexual abuse,” followed by ten years of
“private practice” seeing children and adults “in an individual as well as a family
setting.” Her affidavit provides no information about her education and training other
than asserting that she holds a doctorate in psychology.
The trial court granted the partial summary judgment motion in a detailed five-
page order. It did so based upon its conclusion that the impact rule precluded a
recovery for the girls, as well as non-binding precedent from this Court refusing to
apply the pecuniary loss rule to claims by minors. See Shamblin v. Corp. of the
Presiding Bishop of the Church of Jesus Christ of Latter Day Saints, 352 Ga. App.
870, 878-879 (4) (836 SE2d 171) (2019) (physical precedent only).
1. The mother contends that the impact rule does not apply in this case because
it applies only to “negligent infliction of emotional distress” cases rather than
“straightforward claims of negligence.” We disagree.
As the Supreme Court of Georgia has explained, the impact rule
7
has a long history with its origins in Chapman v. Western Union Tel.
Co., 88 Ga. 763 (15 SE 901) (1892), a case involving a plaintiff’s
unsuccessful attempt to recover damages from a telegraph company for
mental pain and suffering resulting from the company’s alleged failure
to timely deliver a message to the plaintiff informing him of his
brother’s desperate illness. The Chapman court observed, [that 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.
(Citation omitted.) Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 584-585 (I) (533
SE2d 82) (2000). It has long been established that the impact rule applies to claims
“concerning negligent conduct.” Id. at 584 (I); Ryckeley v. Callaway, 261 Ga. 828(412 SE2d 826) (1992); Hamilton v. Powell, Goldstein, Frazer and Murphy, 252 Ga.
149, 150 (311 SE2d 818) (1984).
There are three policy reasons traditionally given for having the impact
rule and denying recovery for emotional distress unrelated to physical
injuries. 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,
8
there would be difficulty in proving the causal connection between the
defendant’s negligent conduct and claimed damages of emotional
distress.
Lee, 272 Ga. at 587 (II).
In its current form, 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 causes the plaintiff’s mental suffering or
emotional distress.” Lee, 272 Ga. at 586 (I). A failure to meet any one of these
requirements is fatal to a recovery. Id. Georgia courts previously have applied the
impact rule to preclude recovery for emotional distress damages when a woman
sought to recover in negligence against a property owner and manager after two men
broke into her apartment and held her captive for fifteen minutes,5 three women
asserted general negligence claims against a hospital stemming from a hospital
employee’s conduct in creating false negative mammogram reports,6 and a train
engineer sought to recover damages for post-traumatic stress disorder arising out of
a collision between a truck and the train when the train engineer suffered no physical
5
Owens v. Gateway Mgmt. Co., 227 Ga. App. 815, 816 (490 SE2d 501) (1997).
6
Jefferson v. Houston Hosps., 336 Ga. App. 478, 487 (3) (c), (e) (784 SE2d
837) (2016).
9
injury.7 Compare Grizzle v. Norsworthy, 292 Ga. App. 303, 305 (1) (a) (664 SE2d
296) (2008) (trial court erred in granting summary judgment based upon impact rule
where doctor’s affidavit created issue of fact as to whether physical impact of car with
train caused physical injury to train conductor).
The impact rule has no application in three circumstances. “In cases where
mere negligence is not relied on, but the conduct complained of is malicious, wilful,
or wanton, mental pain and suffering may be recovered without” application of the
impact rule, Montega Corp. v. Hazelrigs, 229 Ga. 126, 127 (189 SE2d 421) (1972),
provided that it is directed toward the plaintiff. Lee, 272 Ga. at 584 (I), n.2. Another
carefully circumscribed exception to the physical impact rule,
authorizing recovery of damages by a parent where the parent and her
child both suffered a physical impact that caused them both physical
injuries, even if the parent’s emotional distress arose not only from her
physical injury but also from watching her child suffer and die.
Coon v. The Med. Center, 300 Ga. 722, 734 (4) (797 SE2d 828) (2017). Finally, the
pecuniary loss rule, which will be explained in more detail in Division 3, provides for
7
Shores v. Modern Transp. Svcs., 262 Ga. App. 293, 295 (1) (585 SE2d 664)
(2003).
10
a third circumstance in which the impact rule does not apply. See Oliver v. McDade,
297 Ga. 66, n.1 (772 SE2d 701) (2015).
Relying upon this Court’s decision in Warnock v. Sandford, 349 Ga. App. 426(825 SE2d 922) (2019), the mother asserts that the impact rule only applies if a
plaintiff pleads a “negligent infliction of emotional distress claim.” In Warnock, the
defendant in a negligence case arising out of a motor vehicle collision asserted that
the trial court erred when it failed to instruct the jury on Georgia’s impact rule. Id. In
that case, it was undisputed that one of the injured plaintiffs suffered physical injuries
in the accident. The defendant asserted that the pattern charge on mental pain and
suffering given by the trial court failed to adequately explain the third prong of the
impact rule (physical injury to the plaintiff causes the plaintiff’s mental suffering or
distress). Id. at 428. In the course of concluding that the trial court did not err in its
charge, we stated:
This Court has explained that the impact rule does not apply to all
claims concerning negligent conduct. To the contrary, the impact rule
applies specifically to claims for negligent infliction of emotional
distress. . . . The [plaintiffs’] complaint did not include a claim for
negligent infliction of emotional distress. Instead, it asserted
straightforward claims of negligence and gross negligence and alleged
that the injuries suffered by [the husband] and the other damages he and
11
his wife sustained were “the direct and proximate result of the
[defendant’s] misconduct.” Consequently, the impact rule is not
applicable in this case.
(Citation and punctuation omitted.) Id. at 429-430.
Georgia law does not support the conclusion in Warnock that the impact rule
applies only to claims of “negligent infliction of emotional distress” rather than
“straightforward claims of negligence and gross negligence.” 349 Ga. App. at 429-
430. In Lee, the Supreme Court of Georgia examined the impact rule and determined
that its benefits outweighed its shortcomings. 272 Ga. at 588 (III). In so holding, it
expressly “decline[d] to adopt any rule which might, in effect, create a separate tort
allowing recovery of damages for the negligent infliction of emotional distress.” Id.See also Holbrook v. Stansell, 254 Ga. App. 553, 554 (1) (562 SE2d 731) (2002)
(“There is no independent tort in Georgia for negligent infliction of emotional
distress.”). While the parlance “negligent infliction of emotional distress” has crept
into our case law since the Supreme Court of Georgia’s decision in Lee,8 and a
8
See Coon, 300 Ga. at 734 (4) (“Georgia follows the physical impact rule for
claims of negligent infliction of emotional distress. . . .”); Wilson v. Allen, 272 Ga.
App. 172, 174 (1), n.4 (612 SE2d 39) (2005) (“We note that the cases cited by
[appellee] in support of her argument pre-date our Supreme Court’s decision in Lee,
which clearly sets forth the elements of a claim for negligent infliction of emotional
12
negligence claim seeking only damages for emotional distress is most assuredly
subject to the impact rule, this does not mean that the impact rule does not apply to
negligence cases generally. Nor should it mean that it applies only to separately
pleaded causes of action for “negligent infliction of emotional distress.” To hold
otherwise would elevate nomenclature over substance, which is the exact opposite of
the construction to be applied to pleadings. Tafel v. Lion Antique Cars & Investments,
297 Ga. 334, 337 (2) (773 SE2d 743) (2015) (“substance, rather than nomenclature,
governs pleadings”) (citation and punctuation omitted). Accordingly, we disapprove
the holding in Warnock that the impact rule can only be applied to cases in which
“negligent infliction of emotional distress” was alleged in the complaint.9
distress.”); Hang v. Wages & Sons Funeral Home, 262 Ga. App. 177, 179 (585 SE2d
118) (2003) (properly outlines impact rule and then states without citation of
authority: “A party claiming negligent infliction of emotional distress must therefore
show a physical impact resulting in physical injury.”).
9
We note that similarly troubling language was used in McConnell v. Dept. of
Labor, 345 Ga. App. 669 (814 SE2d 790) (2018), in a sovereign immunity analysis.
Id. at 675 (1) (b) (stating in dicta that “[t]o the extent the Department suggests that
the impact rule applies to any claim concerning negligent conduct, this is incorrect.
To the contrary, the impact rule applies specifically to claims for negligent infliction
of emotional distress.”) (emphasis in original). The division in which this dicta
appears is physical precedent only, and the Supreme Court of Georgia later pointed
out on certiorari that impact rule considerations “are irrelevant to the threshold
question of whether the State has waived its sovereign immunity. . . .” Dept. of Labor
v. McConnell, 305 Ga. 812, 814 (2) (828 SE2d 352) (2019). While the language
13
2. The mother contends that she has submitted sufficient evidence to satisfy the
physical injury prong of the impact rule. First, she asserts that we should infer
physical injury because the twins were in a serious car wreck. Second, she relies upon
her expert’s opinion to show a physical injury. Neither of these arguments persuade
us that a genuine issue of material fact exists with regard to physical injury.
(a) The first argument fails in light of the direct evidence from the mother’s
deposition and interrogatory response that her daughters suffered no physical injury.
“[C]ircumstantial evidence can be described as evidence which does not constitute
direct proof with regard to the issue of fact or the hypothesis sought to be proven by
the evidence; rather, circumstantial evidence constitutes proof of other facts
consistent with the hypothesis claimed.” (Citation and punctuation omitted.)
Callaway v. Quinn, 347 Ga. App. 325, 327 (1) (819 SE2d 493) (2018).
In ruling on a motion for summary judgment, a finding of fact that
may be inferred from, but is not demanded by, circumstantial evidence
has no probative value against positive and uncontradicted evidence that
quoted from McConnell is incorrect, we need not expressly disapprove such
nonbinding dicta. See Dunagan v. State, 269 Ga. 590, 593 (2) (a), n.4 (502 SE2d 726)
(1998) (it is not necessary to overrule mere dicta). To her credit, the mother did not
rely upon McConnell in her briefs and argument before this Court.
14
no such fact exists, provided that the circumstantial evidence may be
construed consistently with the direct evidence.
Brown v. DeKalb County, 333 Ga. App. 441, 444 (777 SE2d 23) (2015). In this case,
the limited evidence of the circumstances of the accident in the record before us do
not demand a finding that the twins were physically injured as a result and may be
construed consistently with the direct evidence. Accordingly, this evidence fails to
create a genuine issue of material fact regarding physical injury of the twins.
(b) With regard to the expert affidavit, the trial court noted that the expert’s
opinion based “upon a reasonable therapeutic probability” was “vague” and
concluded that the affidavit failed to “sufficiently show that they, in fact, suffered a
physical injury as a result of the collision, what that injury was, or where it was
located.” A court is not required to accept automatically assertions in an expert
affidavit when considering a motion for summary judgment. For example, in
Sugarloaf Café v. Wilbanks, 279 Ga. 255, 256 (612 SE2d 279) (2005), the Supreme
Court of Georgia held that “expert opinion evidence cannot be used to contradict the
direct evidence showing that the [bar patron] did not drive to or from [the restaurant]
because it is based only on inferences and does not establish the conclusion that [the
restaurant] knew [the bar patron] would be driving soon after she left.” Additionally,
15
when the basis of [an expert’s] opinion is given and it appears that it is
wholly speculative or conjectural, it must follow that [the] opinion is
without foundation and has no probative value. Speculation and
conjecture by an expert is still speculation and conjecture, and will not
support a verdict.
(Citation and punctuation omitted; emphasis in original.) Layfield v. Dept. of Transp.,
280 Ga. 848, 850 (1) (632 SE2d 135) (2006).
In this case, Dr. Hopkins-Naylor does not expressly state the basis for her
opinion that the twins suffered physical symptoms of pain as a result of the collision
or identify the specific physical symptoms suffered. In the paragraphs of her affidavit
preceding her one-sentence conclusion, she stated: her experience in working with
trauma patients; that physical-pain-inducing sensations can be experienced by those
experiencing trauma; that physical injury typically heals faster than emotional trauma;
that nine months after the accident the twins “presented with observable symptoms
that included being on edge, nervousness, and worry”; that it “was the case” that these
observable symptoms “create[d] stress and discomfort on the[ir] physical condition”;
that the twins “described the collision and aftermath of the collision in terms that can
be characterized as acute distress disorder”; and their symptoms of acute distress
disorder (hypervigilant behavior, sleep disturbance, and avoidance, such as not going
16
to school and not getting on the bus) “began immediately after the collision, and they
were both still talking about the impact when they presented to me.”
From the above, we observe that the expert stated as a matter of fact that when
she saw the girls nine months after the accident, they had observable symptoms
(“being on edge, nervousness, and worry”) that created unspecified stress and
discomfort on their “physical condition.” She described different symptoms
(hypervigilant behavior, sleep disorder, and avoidance) as beginning immediately
after the collision, but did not link any physical injury to these symptoms. Finally, she
opined that the twins “suffered physical symptoms of pain and somatic pain as a
result of the collision, as well as emotional harm.” After carefully considering this
opinion, we conclude that the expert’s opinion is based on inferences from her
observation of the girls nine months after the accident and that it fails to create a
genuine issue of material fact on the issue of physical injury in light of the direct
evidence to the contrary.
3. The mother contends in the alternative that if the impact rules applies and
has not been satisfied in this case, this Court should apply the pecuniary loss rule to
allow a recovery for her daughters’ emotional distress. We disagree.
17
In order “[f]or a pecuniary loss to support a claim for damages for emotional
distress, the pecuniary loss must occur as a result of a tort involving an injury to the
person even though this injury may not be physical.” (Citation and punctuation
omitted.) Oliver, 297 Ga. at 66, n.1. The primary example of an injury to the person
that is not physical has been damage to reputation. See, e.g., OB-GYN Assoc. of
Albany v. Littleton, 259 Ga. 663, 666-667 (2) (B) (386 SE2d 146) (1989).
The mother points to the $400 charged by Dr. Hopkins-Naylor for her two
interactions with the girls as a monetary loss satisfying the pecuniary loss rule. In
Owens v. Gateway Mgmt. Co., 227 Ga. App. 815 (490 SE2d 501) (1997), we rejected
a contention that similar evidence satisfied the pecuniary loss rule. In that case, the
plaintiff sought to recover in negligence for emotional injury and asserted that
“medical bills and lost time from work” because of her emotional distress qualified
as a pecuniary loss. Id. at 816. We rejected this argument because the monetary loss
was “itself a form of emotional distress damage as opposed to pecuniary loss
occurring as the result of a tort involving an injury to the person even though this
injury may not be physical[,] such as an injury to reputation. To hold otherwise would
be to allow bootstrapping of an extreme nature.” (Citation and punctuation omitted.)
Id. As the mother seeks identical “bootstrapping of an extreme nature” in this case,
18
we must follow Owens, and conclude that the pecuniary loss rule does not apply to
her daughters’ claims.
4. Based upon our holding in Division 3, we need not address the mother’s
claim that we should overrule Shamblin, 352 Ga. App. at 870. In Shamblin, we held
that even if psychological treatment of a minor could satisfy the pecuniary loss rule,
the minor “did not suffer a pecuniary loss, because he was not legally responsible for
the cost of his treatment.” Id. at 879 (4). Our conclusion in Division 3 also renders
moot the mother’s claim that our holding in Shamblin violates the equal protection
of the laws found in the Constitutions of the Unites States and Georgia.
Judgment affirmed. Reese, J., concurs. Doyle, P. J., concurs fully and specially.
19
A21A1513. ELEY et al v. FEDEE.
DOYLE, Presiding Judge, concurring fully and specially.
In light of the current state of the law and the mother’s record testimony1 that
her daughters sustained no physical injuries from the car accident, I concur fully in
the majority opinion. Nevertheless, I write separately because I have reservations
about the impact rule’s application to cases such as this one, in which the injured
party is not merely a bystander to negligence affecting someone else and instead is
directly affected by the alleged tortious conduct, i.e., the car accident itself.
1. (a) Appropriateness of the impact rule. There is no dispute that the twins
1
As Judge Brown notes, the appellate record contains only six pages of the
mother’s deposition. It was not included in the “Essential Parts of the Record” listed
in the appellants’ brief. But their brief refers to additional facts that might have made
a difference in this appeal had those facts been supported in the record. Instead,
supporting citations were to briefs filed in the trial court, which are not evidence and
cannot be considered by this Court. See Court of Appeals Rule 25 (a) (1), (c). Further,
while the notice of appeal indicated nothing should be omitted from the appellate
record, the parties admitted at oral argument that the mother’s complete deposition
was not made a part of the record in the trial court.
were passengers in the car at the time of the wreck. There is also evidence that the
wreck was serious and, as described by Fedee – the admittedly at-fault tortfeasor –
as “hard,” with the front end of the mother’s car crushed, the air bags deployed, and
smoke filling the passenger cabin. Both Fedee and the mother were injured; Fedee
blacked out at the scene, injured her back, and was taken by ambulance to a hospital,
while the mother suffered burns, bruises, an injured back, shooting pain in her leg,
dizziness, vertigo, and nausea. But the record contains no evidence of a physical
injury to either of the twins.2 Even so, they both suffered mentally, and both were
diagnosed with acute stress disorder after exhibiting symptoms that lasted for more
than nine months following the accident.
So why is it that the law prohibits the twins from seeking to recover for the
emotional distress they suffered after having been passengers in a car involved in an
2
There is some evidence in the record that the mother’s air bag deployed and
smoke filled the car in which the twins were passengers, necessitating that they “get
out” of the car. This alone, however, is not sufficient to create a question of fact as
to a physical injury because there is no evidence that the twins experienced any
physical symptoms from the smoke — even if one might reasonably assume that they
temporarily suffered from the smoke inhalation in the form of itchy eyes or sore
throats. See, e.g., Canberg v. City of Toccoa, 255 Ga. App. 890, 891 (567 SE2d 21)
(2002) (“Canberg’s eyes burned and watered from the smoke and heat of the fire.”).
I also agree with the majority opinion that the expert affidavit describing the twins’
symptoms and diagnoses is speculative, speaks in generalizations, and falls short of
establishing a question of fact on the issue of physical injury to the twins.
2
accident? It should not. Historically, our courts have identified three policy reasons
for applying the impact rule, none of which apply in this case:
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.3
Here, the damages at issue are typical of those sought by plaintiffs involved in
car wrecks. There is a “clear relationship between the plaintiff[s] being . . . victim[s]
of the breach of duty and the compensability to the plaintiff[s].”4 And this is not a
case in which “there is no connection between the nature of the damages and the
reason for allowing the additional recovery,”5 nor is it a case of “limitless liability out
3
Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 587 (II) (533 SE2d 82) (2000).
Notably, the Lee court observed that the impact rule originated from a scenario
involving mental anguish over the failure to deliver a telegraph message, which
necessarily involves remote distances and remote causality. See id. at 584-585 (I),
citing Chapman v. Western Union Telegraph Co., 88 Ga. 763, 768 (15 SE 901)
(1892).
4
Lee, 272 Ga. at 587 (II).
5
Id. at 588 (II).
3
of all proportion to the degree of a defendant’s negligence.”6 The alleged mental
injuries directly flow as a natural consequence of the alleged tortious conduct, and
they would be legally cognizable — though no different in character — had there
been a physical injury to the twins. In sum, nothing in this case suggests an expanded
class of victims, a risk of fraud, or causal remoteness.
I further question the over-emphasis of our case law on whether the mental
injury stems from the physical injury as opposed to the frightening circumstances of
the physical impact itself. The shock of being hit hard by another car is plainly more
distressing than receiving a bruise. In the context of this case, requiring a nexus
between a possibly minor physical injury and a significant mental injury is
disingenuous and ignores the very real mental injuries that could be suffered in
similar situations, especially those involving minors.7
6
Id. at 586 n.7. See also Coon v. Med. Ctr., Inc., 300 Ga. 722, 734 (797 SE2d
828) (2017).
7
The record is devoid of any direct testimony from the twins, who may very
well have testified to the physical affects of the smoke from the air bag, as well as
bumps and bruising felt by them during and immediately after the collision, as
compared to their mother’s testimony of their physical injuries from the collision,
which was given at a deposition years later.
4
(b) Disapproval of Warnock. Although I believe that Warnock v. Sanford8 is
distinguishable, I agree that it should be disapproved to the extent that it is relied on
for the proposition that the impact rule only applies to claims for “negligent infliction
of emotional distress,” as opposed to negligence claims seeking only emotional
distress damages.9
2. Pecuniary loss rule. Finally, while I agree with the majority opinion’s
analysis of the pecuniary loss rule in Division 3 and that we need not overrule
Shamblin v. Corp. of the Presiding Bishop &c.,10 in Division 4, I question whether the
8
349 Ga. App. 426 (825 SE2d 922) (2019).
9
The general rule in Georgia is 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.” Lee, 272 Ga. at 584 (I).
Exceptions to this rule exist, but the rule is not limited to claims seeking “negligent
infliction of emotional distress,” a claim with limited recognition in Georgia.
(Emphasis omitted.) S & W Seafoods Co. v. Jacor Broadcasting of Atlanta, 194 Ga.
App. 233, 237 (3) (390 SE2d 228) (1989) (“this state recognizes no cause of action
for negligent infliction of emotional distress”). See also Hamilton v. Powell,
Goldstein, Frazer, & Murphy, 252 Ga. 149, 150 (311 SE2d 818) (1984) (explaining
that damages for mental injuries are recoverable for intentional infliction of emotional
distress but not for general negligence absent a physical injury). But see Grizzle v.
Norsworthy, 292 Ga. App. 303, 303, 305 (a) (1) (664 SE2d 296) (2008) (stating that
“Grizzle appeals the summary judgment against him on his claim of negligent
infliction of emotional distress,” but holding that there was a question of fact as to
whether Grizzle sustained a physical injury).
10
352 Ga. App. 870 (836 SE2d 171) (2019).
5
applicability of the pecuniary loss exception should be dictated by the minor’s lack
of personal responsibility for paying her medical bills. If the law were to allow for a
recovery of damages arising out of an emotional injury, then the fact that a parent, as
opposed to a child, pays for treatment has no bearing on the reality that the child
received treatment for a mental injury that is confirmed by the existence of the
medical professional’s bill.11
11
This situation is no different from a plaintiff seeking to recover for the value
of medical expenses incurred as a result of an injury caused by another’s negligence
despite the presence of medical insurance. See generally MCG Health, Inc. v. Kight,
325 Ga. App. 349, 353 (1) (750 SE2d 813) (2013) (“[U]nder the collateral source
rule, [the plaintiff] was entitled to seek full recovery from the tortfeasor of reasonable
and necessary hospital charges undiminished by insurance payments or [hospital]
‘write-offs’. . . .”).
6