Ford v. Whipple

• Decision Date: 13 February 1997
• Docket Number: No. A96A2163,A96A2163
• Citation: 225 Ga.App. 276,483 S.E.2d 591
• Parties: , 97 FCDR 633 FORD et al. v. WHIPPLE.
• Court: Georgia Court of Appeals

Page 591

483 S.E.2d 591

225 Ga.App. 276, 97 FCDR 633

FORD et al. v. WHIPPLE.

No. A96A2163.

Court of Appeals of Georgia.

Feb. 13, 1997.

Reconsideration Denied March 7, 1997.

Certiorari Denied Sept. 18, 1997.

Christopher G. Moorman, Atlanta, for appellants.

James L. Ford, Sr., pro se.

Sullivan, Hall, Booth & Smith, Brynda S. Rodriguez, Lyndy C. Stewart, Atlanta, for appellee.

BEASLEY, Judge.

Appellants, parents of Emily Claire Ford, challenge the trial court's dismissal with prejudice of their personal injury claim brought against appellee "in their capacity as parents of" the child.

The Fords allege that on February 1, 1995, Whipple negligently drove her car at an excessive speed, through a red traffic control light, and collided with a vehicle in which Emily Ford was a passenger. Just short of three months later, the initial complaint was filed and stated, "It is not believed at this time that Emily Ford suffered any physical injury as a result of the collision. It is not believed at this time that Emily Ford suffered any psychological or emotional injuries as a result of the Defendant's wrongful conduct. However, Emily Ford, a five-year-old child, did sustain fright and apprehension following the accident as a direct and proximate result of the Defendant's wrongful conduct, for which the Plaintiffs seek nominal damages." They also sought punitive damages to deter defendant and other drivers from consciously disregarding the rights of other persons on the streets and highways. Thus the pleadings show there were no medical expenses or other pecuniary loss and that the alleged injuries themselves were non-physical and slight, even including pain and suffering, as the compensation sought is only nominal.

Whipple answered and, late in August, moved to dismiss for failure to state a claim upon which relief can be granted, pursuant to OCGA § 9-11-12(b)(6), on the basis that plaintiffs failed to allege that the child suffered "any physical, psychological, or emotional injury as a result of the collision in Plaintiffs' Complaint." The Fords amended the complaint to clarify that it was not believed that the child suffered any physical injury "other than the physical shock and fright," and that it was not believed that she suffered "any psychological or emotional injuries," only "fright and apprehension" for which they sought nominal damages.

The only enumeration of error is that the trial court erred in granting appellee's motion to dismiss for failure to state a claim. "A motion to dismiss should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. [Cit.]" (Punctuation Omitted). Vaughan v. Vaughan, 253 Ga. 76, 77, 317 S.E.2d 201 (1984); see also Bowen v. Adams, 203 Ga.App. 123, 416 S.E.2d 102 (1992); Wehunt v. ITT Business, etc., Corp., 183 Ga.App. 560, 561, 359 S.E.2d 383 (1987). All facts in the pleadings are to " 'be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible.' " Bowen, supra. " 'For the purposes of the motion [for judgment on the pleadings], all well-pleaded material allegations of the opposing party's pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false. (Cit.)' [Cit.]" Castleberry v. Ga. Farm Bureau Mut. Ins. Co., 192 Ga.App. 58, 59, 383 S.E.2d 621 (1989).

Assuming arguendo that the suit is properly brought by plaintiffs, they are precluded from recovery because there is expressly no physical injury. Ryckeley v. Callaway, 261 Ga. 828, 412 S.E.2d 826 (1992); see also OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 666(2)(A), 386 S.E.2d 146 (1989); Carroll v. Rock, 220 Ga.App. 260, 262(2), 469 S.E.2d 391 (1996); Killebrew v. Sun Trust Banks, 216 Ga.App. 159, 161(2), 453 S.E.2d 752 (1995) (rev'd on other grounds, 266 Ga. 109, 464 S.E.2d 207 (1995)); Powers v. Latimer, 215 Ga.App. 245, 248(4), 450 S.E.2d 295 (1994); R.J. Taylor Mem. Hosp. v. Gilbert, 213 Ga.App. 104, 105, 443 S.E.2d 656 (1994) (rev'd on other grounds, 265 Ga. 580, 458 S.E.2d 341 (1995)); Harris v. Wall Tire Co., 197 Ga.App. 818(1), 399 S.E.2d 580 (1990). If we take what the Fords say as true, there is no physical injury and there is no doubt to resolve in their favor. Inference of bruising or scratching is more than a favorable construction, it is beyond and even contrary to the pleadings. The complaint precludes such injuries, which would have already manifested themselves. The pleadings disclose with certainty that there can be no recovery for emotional damage built upon a physical injury.

OCGA § 51-12-6, which provides the measure of damages for torts where the third element, injury, is of a certain limited type, does not rescue plaintiffs' complaint. The 1987 amendment to long-standing law did not change the language or applicability of the controlling first sentence but instead precluded punitive damages in certain such actions. In addition, the amendment struck the description of factors which the jury could consider and the portion describing when a court could disturb the verdict. Clearly, none of this affected the physical injury impact rule. That is confirmed by the Supreme Court of Georgia's subsequent decisions in OB-GYN Assoc. of Albany, supra, and Ryckeley, supra, decided in 1989 and 1992, respectively. Neither does this damages Code section, as amended in 1987, create a new tort of negligent infliction of emotional distress. As said even before the amendment, "[t]his section does not create a cause of action ... but prescribes the measure of recovery where such cause of action exists. [Cit.]" Westview Cemetery v. Blanchard, 234 Ga. 540, 544(2), 216 S.E.2d 776 (1975).

Plaintiffs' alternative basis for recovery, wanton and wilful conduct directed at the plaintiffs, cannot be allowed either. "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. [Cit.]" Ryckeley, supra. The Fords contend on appeal there is an inference of such, but their pleadings show there was no physical injury from an impact. " 'Georgia follows the "impact rule" which requires that defendant's conduct must result in actual bodily contact to the plaintiff except under circumstances where the wilful act was directed against the plaintiff....' [Cits.]" Id. at 829, 412 S.E.2d 826.

Even if Whipple's speeding was wanton and wilful on this thoroughfare connecting Peachtree Road with Roswell Road, the pleadings do not allege that she directed this conduct at the plaintiff's child, and without such a claim there is no reasonable construction that she did so. Her conduct cannot be seen as directed at "anyone" in her path, and no authority is cited to support this theory.

Disregard of general consequences is a part of wanton behavior, but the exception to the impact rule requires more; the wantonness must be directed to the plaintiff. Ryckeley, supra. See also Evans v. Willis, 212 Ga.App. 335, 337(1)(a), 441 S.E.2d 770 (1994); Richardson v. Hennly, 209 Ga.App. 868, 872(3), 434 S.E.2d 772 (1993), (rev'd on other grounds, 264 Ga. 355, 444 S.E.2d 317 (1994)). To say the actor's conduct is directed at anyone who is in the path ignores the additional requirement. Such an analysis would create the tort of negligent infliction of emotional distress and ignore the rule that "even malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff." Ryckeley, supra at 829, 412 S.E.2d 826.

The law does not accommodate complaints for all of the vicissitudes of life. Although the child's experience may not have been trivial, there is no measurable injury alleged, and thus the trial court correctly granted summary judgment. This relatively small and transitory injury cannot provide the foundation for a punitive damages award. Punishment for the conduct of the driver in speeding and running a red light are adequately dealt with by the traffic code and the criminal laws and the administrative sanctions where appropriate.

Judgment affirmed.

ANDREWS, C.J., POPE, P.J., and JOHNSON, BLACKBURN, SMITH and RUFFIN, JJ., concur.

MCMURRAY, P.J. and ELDRIDGE, J., dissent.

ELDRIDGE, Judge, dissenting.

In seeking to reach the issue that there can be no pain and suffering or emotional distress absent impact and physical injury as well as hold that Georgia does not recognize negligent infliction of emotional distress, the majority does violence to the liberal construction of pleadings under the Civil Practice Act and threatens a return to issue pleadings instead of notice pleadings. Had the summary adjudication come on summary judgment under OCGA § 9-11-56 instead of under OCGA § 9-11-12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, then the decision would be procedurally proper, because it would be based upon evidence rather than an amended complaint that a party has a final adjudication upon the merits. Then, it would be known if the minor child had or did not have some physical injury instead of strictly construing the pleadings against the party. This decision will return over and over again to haunt the bench and bar as well as this Court until overruled.

"The basic premise of the new Civil Practice Act is that it does away with 'issue pleading' and substitutes 'notice pleading.' ... 'A petition should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' [Cits.]" Byrd v. Ford Motor Co., 118 Ga.App. 333(2), 163 S.E.2d 327 (1968); see also Cochran v. McCollum, 233 Ga. 104, 210 S.E.2d 13 (1974). "The [Civil...