Clifton Warnock v. Henry Edward Sandford ( 2019 )

THIRD DIVISION
GOBEIL,
COOMER and HODGES, 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.
http://www.gaappeals.us/rules
March 13, 2019
In the Court of Appeals of Georgia
A18A1656. WARNOCK v. SANDFORD et al.
COOMER, Judge.
Henry Edward Sandford and his wife Tina Sandford sued Clifton Warnock1 for
damages arising from a motor vehicle collision. Following a jury trial, the trial court
entered judgment on the jury’s verdict in favor of the Sandfords. Mr. Warnock filed
a motion for new trial, which was denied by the trial court. Mr. Warnock appeals,
contending that the trial court erred when it failed to instruct the jury on Georgia’s
impact rule and instead gave the pattern jury instruction for mental pain and suffering.
For the following reasons, we affirm.
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The Sandfords also sued two other defendants, but Mr. Warnock was the only
remaining defendant at the time of trial.
“On appeal, the evidence is construed most strongly to support the verdict and
judgment.” Tice v. Cole, 246 Ga. App. 135, 135 (537 SE2d 713) (2000) (citation
omitted). So construed, the evidence shows that on September 10, 2009, Mr. Warnock
failed to stop at a stop sign and collided with Mr. Sandford’s vehicle. Following the
accident, the Sandfords filed a complaint alleging negligence and gross negligence
against Mr. Warnock. The Sandfords’ complaint alleged that the “horrific and
catastrophic injuries suffered by [Mr.] Sandford and the other damages he and his
wife [Mrs.] Sandford sustained are the direct and proximate result of the defendants
misconduct.” Mr. Sandford sought damages for “catastrophic and permanent injuries,
the terrible pain and suffering, physical and mental, past, present and future; loss of
earnings and a diminished capacity to labor and earn money; and such other damages
as are recoverable under Georgia law.” Mrs. Sandford sought damages for loss of
consortium and loss of services of her husband.2 The complaint did not include a
claim for negligent infliction of emotional distress.
During a charge conference conducted by the trial court prior to closing
arguments, Mr. Warnock requested the trial court to instruct the jury on Georgia’s
impact rule. Mr. Warnock’s proposed charge provided as follows:
2
Mrs. Sandford’s loss of consortium claim is not the subject of this appeal.
2
Pain and suffering includes mental suffering, but mental suffering is not
a legal item of damage unless there is physical suffering also. However,
a plaintiff may not recover for emotional distress arising from a fear of
contracting a disease or developing a mental [sic] until [he] begins to
manifest symptoms of the disease[.] I charge you that, in order for
Plaintiff to recover for emotional distress (mental suffering), he must
show that he suffered a physical impact, the physical impact caused his
physical injury, and the physical injury caused his mental suffering and
emotional distress. In evaluating the plaintiff’s pain and suffering, you
may consider the following factors, if proven: interference with normal
living; interference with enjoyment of life; loss of capacity to labor and
earn money; impairment of bodily health and vigor; fear of extent of
injury; shock of impact; actual pain and suffering, past and future;
mental anguish, past and future; and the extent to which plaintiff must
limit activities.
Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 586 (2000) (“[T]he
current 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 the plaintiff causes the plaintiff’s
mental suffering or emotional distress.”)
The trial court denied the request and gave the following pattern jury
instruction for mental pain and suffering:
Pain and suffering includes mental suffering, but mental suffering is not
a legal item of damage unless there is physical suffering also. In
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evaluating the plaintiff’s pain and suffering, you may consider the
following factors, if proven: interference with normal living;
interference with enjoyment of life; loss of capacity to labor and earn
money; impairment of bodily health and vigor; fear of extent of injury;
shock of impact; actual pain and suffering, past and future; mental
anguish, past and future; and the extent to which the plaintiff must limit
activities.
Suggested Pattern Jury Instructions, Vol. I: Civil Cases (2017), § 66.501 (b). Mr.
Warnock objected to the pattern jury instruction on the basis that it did not adequately
define for the jury the application of the impact rule.
The jury returned a verdict in favor of the Sandfords in the total amount of
$14,550,000, with 25% fault apportioned to Mr. Sandford. The total amount of
damages included $7 million for pain and suffering (physical and mental) and $4
million for future pain and suffering (physical and mental). Judgment was entered in
the post-apportioned amount of $10,912,500. Mr. Warnock filed a motion for new
trial based in part on his argument that the jury instruction on mental pain and
suffering was inconsistent with the impact rule in that it did not require the jury to
find that Mr. Sandford’s emotional distress was caused by his physical injuries. The
trial court denied the motion, and this appeal followed.
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Mr. Warnock contends that the trial court erred when it declined to deliver his
proposed impact rule instruction and instead gave the pattern instruction for mental
pain and suffering, which did not adequately instruct the jury regarding the impact
rule. Specifically, he argues that the pattern charge did not encompass the third prong
of his proposed charge, i.e. that the jury could award damages to Mr. Sandford for
emotional distress only to the extent that it was caused by his actual physical injuries.
In other words, Mr. Warnock contends that the impact rule required the jury to
determine whether and to what extent Mr. Sandford’s depression and post-traumatic
stress disorder are attributable to a physical brain injury as opposed to an emotional
reaction to the consequences of his injuries. Conversely, the Sandfords contend that
Mr. Warnock conflates “negligent infliction of emotional distress,” which is limited
as a matter of law by the impact rule, and recovery for physical and mental pain and
suffering, to which the impact rule has no application.
“It is well settled that in order for a refusal to charge to be error, the requests
must be entirely correct and accurate, and adjusted to the pleadings, law, and
evidence, and not otherwise covered in the general charge.” Bennett v. Moore, 312
Ga. App. 445, 460 (4) (b) (718 SE2d 311) (2011) (citation omitted). Our review of
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a jury instruction is de novo. Jordan v. State, 322 Ga. App. 252, 255 (4) (a) (744
SE2d 447) (2013).
“It is well established that to recover for injuries caused by another’s
negligence, a plaintiff must show four elements: a duty, a breach of that duty,
causation and damages.” Royal v. Ferrellgas, Inc., 254 Ga. App. 696, 698 (1) (a) (563
SE2d 451) (2002) (citation and punctuation omitted). The Restatement of Torts 2d,
§456 (1965), provides: “If the actor’s negligent conduct has so caused any bodily
harm to another as to make him liable for it, the actor is also subject to liability for (a)
fright, shock, or other emotional disturbance resulting from bodily harm or from the
conduct which causes it, and (b) further bodily harm resulting from such emotional
disturbance.”
“The impact rule may be summarized 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.’” Oliver v.
McDade, 297 Ga. 66, 67 n. 2 (772 SE2d 701) (2015) (citation omitted). “[T]he
current 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
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injury to the plaintiff causes the plaintiff’s mental suffering or emotional distress.”
Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 586 (I) (533 SE2d 82) (2000).
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, [there] 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.
Id. at 587 (citations and punctuation omitted).
This Court has explained that the impact rule does not apply to all claims
concerning negligent conduct. McConnell v. Dept. of Labor, 345 Ga. App. 669, 674
(1) (b) (814 SE2d 790) (2018). “To the contrary, the impact rule applies specifically
to claims for negligent infliction of emotional distress.” Id. (citations omitted). For
example, in Coon v. Med. Center, Inc., 300 Ga. 722 (797 SE2d 828) (2017), the
plaintiff sought to recover damages for the negligent infliction of emotional distress
after a hospital mishandled the remains of her stillborn baby. The Supreme Court
stated that “Georgia follows the physical impact rule for claims of negligent infliction
of emotional distress” and held that the trial court had properly granted summary
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judgment to the hospital because the plaintiff did not suffer a physical impact that
resulted in physical injury. Id. at 734-735 (4) (citation omitted). Similarly, in Hang
v. Wages & Sons Funeral Home, Inc., 262 Ga. App. 177, 180-182 (585 SE2d 118)
(2003), which involved the premature cremation of a family member’s body before
his viewing and funeral, we stated that “[a] party claiming negligent infliction of
emotional distress must therefore show a physical impact resulting in physical
injury.”
The Sandfords’ 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 Mr. Sandford and the other
damages he and his wife sustained were “the direct and proximate result of the
defendants misconduct.” Consequently, the impact rule is not applicable in this case.
Thus, the trial court’s refusal to charge the jury on the impact rule was not error. For
the same reason, Mr. Warnock’s contention that the pattern jury instruction for mental
pain and suffering given by the trial court is inadequate because it did not adequately
instruct the jury regarding the impact rule fails.
“[O]n appellate review, jury charges must be read and considered as a whole
in determining whether the charge contained error.” Evans v. Department of Transp.,
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331 Ga. App. 313, 321 (3) (771 SE2d 20) (2015) (citation and punctuation omitted).
In addition to the pattern charge for mental pain and suffering, the trial court also
charged as follows:
The case before you is a tort case in which the plaintiff must prove by
a preponderance of the evidence that the negligence of the defendant, if
any, was a proximate cause of the injuries to the plaintiff. . . . Before a
plaintiff can recover damages from a defendant in a case such as this,
there must be injury to the plaintiff resulting from the defendant’s
negligence.
The trial court gave the following jury instruction on proximate cause:
Proximate cause means that the cause which, in a natural and continuous
sequence, produces an event, and without which cause such event would
not have occurred. In order to be a proximate cause, the act or omission
complained of must be such that a person using ordinary care would
have foreseen that the event, or some similar event, might reasonably
result therefrom. There may be more than one proximate cause of an
event, but if an act or omission of any person not a party to the suit was
the sole proximate cause of an occurrence, then no act or omission of
any party could have been a proximate cause. When I use the expression
“proximate cause,” I mean a cause that, in the natural or ordinary course
of events, produced the plaintiff’s injury.
No plaintiff may recover for injuries or disabilities that are not
connected with the act or omissions of the defendant in this case. There
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can be no recovery for any injury or disability that was not proximately
caused by the incident in question.
The mere fact that a collision happened and that the plaintiff may have
sustained injuries or damages affords no basis for recovery against a
particular defendant unless the plaintiff carries the burden of proof and
shows that such damages were proximately caused by the negligence on
the part of the defendant.
The trial court also instructed the jury as follows:
No plaintiff may recover for injuries or disabilities that are not
connected with the act or omissions of the defendant in this case. There
can be no recovery for a particular plaintiff for any injury or disability
that was not proximately caused by the incident in question.
If you should find that, at the time of the incident, that the plaintiff had
any physical condition, ailment, or disease that was becoming apparent
or was dormant, and if you should find that the plaintiff received an
injury as a result of the negligence of the defendant and that the physical
injury resulted in any aggravation of a condition already pending, then
the plaintiff could recover damages for aggravation of the preexisting
condition.
Taken as a whole, the jury charge at issue in this case was correct and not misleading
and fully apprised the jury of the applicable law. The trial court sufficiently instructed
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the jury that Mr. Sandford’s damages for mental pain and suffering had to result from
Mr. Warnock’s negligence.
Judgment affirmed. Gobeil and Hodges, JJ., concur.
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