Malibu Boats, LLC v. Batchelder

• Decision Date: 10 October 2018
• Docket Number: A18A0881
• Citation: 347 Ga.App. 742,819 S.E.2d 315
• Court: Georgia Court of Appeals
• Parties: MALIBU BOATS, LLC, et al. v. BATCHELDER et al.

347 Ga.App. 742

819 S.E.2d 315

MALIBU BOATS, LLC, et al.

v.BATCHELDER et al.

A18A0881

Court of Appeals of Georgia.

October 10, 2018

Reconsideration Denied October 24, 2018

Certiorari Denied June 3, 2019

Hall Booth Smith, Robert L. Shannon, Jr., Jacquelyn S. Clarke, Kenneth D. Jones, Ciera N. Locklair, for appellants.

The Cooper Firm, Lance A. Cooper, Andrew S. Ashby, for appellees.

Ray, Judge.

In this interlocutory appeal in a negligence case, we are asked to determine whether a series of events triggered by water swamping a watercraft may constitute a sufficient physical impact, if the events inflict personal injury to the occupants of the watercraft, so as to allow recovery for emotional damages¹ under Georgia's impact rule. In denying Malibu Boats, LLC f/k/a Malibu Boats, Inc., and Malibu Boats West, Inc.’s (collectively, "Malibu"), motions for partial summary judgment on this issue, the Superior Court of Rabun County found that jury questions remained concerning whether the appellees sustained a physical impact, whether any such impact caused the appellees to suffer physical injuries, and whether the appellees suffered emotional distress as a result of any alleged physical injuries. Because we cannot say, as a matter of law, that the events triggered by water swamping a watercraft due to an allegedly negligent design of the watercraft could not fulfill the physical impact requirement of the impact rule, we affirm the trial court's order denying Malibu's motions for partial summary judgment in part. However, we disagree with the trial court's suggestion that certain plaintiffs may be able to recover damages for emotional distress solely from witnessing a traumatic scene and, therefore, reverse that portion of the trial court's order.

Under Georgia law,

[s]ummary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation and punctuation omitted.) Grizzle v. Norsworthy , 292 Ga. App. 303, 303-304, 664 S.E.2d 296 (2008). So viewed, the record reveals that members of the Batchelder family rented a 2000 Response LX boat, manufactured by Malibu, on July 14, 2014, while vacationing at Lake Burton in Rabun County, Georgia. On July 17, 2014, Darin Batchelder, Dennis Ficarra, and four Batchelder children took the boat out on the lake to wake surf and engage in other recreational activities. The children included Kayla and Zack Batchelder (Darin Batchelder's children), Josh Batchelder (Kayla and Zack's cousin), and seven-year-old Ryan Batchelder (Josh's brother). Ficarra is the children's uncle. Ficarra navigated the boat, while Darin Batchelder sat in a port-side seating area. Each of the children was seated in "drop down" seats in the bow of the boat, commonly referred to as the "hot tub" or "playpen" area.

After boating for some time, and while the children argued over whether to return to the dock, Ficarra performed a circular turn which resulted in the boat striking its own wake. At that point, water began to spill over the bow of the boat, where the children were seated. The children reported that the water in the bow reached their shin areas and their knees. The children panicked, and Zack jumped from the boat into the lake to reduce the weight in the bow, while Kayla and Josh scrambled to the rear of the boat; unbeknownst to the other occupants of the boat, Ryan either jumped or was washed from the boat.

In an attempt to level the boat and prevent it from foundering, Ficarra placed the throttle in reverse. Ficarra then stopped the engine and heard everyone yelling that they did not see Ryan. Darin Batchelder and Ficarra jumped in the water to look for Ryan, and Ficarra found him entangled in the propeller.² Ryan died as a result of serious injuries he suffered after being struck by the propeller. In addition, at some point during the ordeal, Zack scraped his stomach as he attempted to re-enter the boat, Kayla suffered a bruise on her shin as she scrambled to the rear of the boat, and Josh began hyperventilating and vomiting shortly thereafter.

As a result of the accident, Ryan's parents, Zack, Kayla, Josh, and Darin Batchelder filed suit against Malibu and others for negligence.³ Malibu moved for partial summary judgment against Zack, Kayla, and Josh Batchelder ("the minor plaintiffs"), asserting that the minors were not entitled to damages for negligent infliction of emotional distress because they were unable to satisfy any element of the impact rule. The trial court found that jury questions remained concerning whether elements of the impact rule had been met and denied Malibu's motions. The trial court granted Malibu a certificate of immediate review, and we granted Malibu's application for interlocutory appeal. This appeal followed and, for the reasons explained below, we agree with the trial court that material issues of fact remain concerning whether the impact rule has been satisfied, but disagree as to the scope of injuries which are recoverable by the minor plaintiffs.

1. In its first enumeration of error, Malibu contends that the trial court erred by finding that "the impact of water ... was sufficient impact under Georgia law to sustain claims for emotional distress damages. ..." However, what the trial court found was that "[w]hether the impact of water slamming into the children and knocking them from their seats and out of the boat is sufficient ‘impact,’ is a jury question. ..." We agree with the trial court that a question of fact remains as to whether the minor plaintiffs sustained a physical impact under the impact rule.

"[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 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 S.E.2d 82 (2000). See also Coon v. The Medical Center , 300 Ga. 722, 734 (4) n. 8, 797 S.E.2d 828 (2017) (same). As a result, "[a] party claiming negligent infliction of emotional distress must therefore show a physical impact resulting in physical injury."⁴ Hang v. Wages & Sons Funeral Home , 262 Ga. App. 177, 179, 585 S.E.2d 118 (2003). See also Lee , supra at 585 (I), 533 S.E.2d 82 (citing OB-GYN Assoc. of Albany v. Littleton , 259 Ga. 663, 665-666 (2) (A), (B), 386 S.E.2d 146 (1989). A plaintiff's failure to meet any one of the three requirements of the impact rule will preclude recovery. See Lee , supra at 586 (I), 533 S.E.2d 82.

The parties have not cited, and we have not found, any Georgia authority addressing a relationship between contact with water and the "physical impact" element of the impact rule. Because a "physical impact" may be sustained in virtually innumerable ways, the facts of this case fall within a broad spectrum bounded on the one side by cases in which evidence of a physical impact was clear,⁵ and on the other by those cases in which it was apparent no physical impact occurred.⁶ Relative to this case, the potentially harmful effects of water generally, and wakes produced by watercraft in particular, have been recognized and regulated in other contexts of Georgia law. See, e.g., OCGA § 52-7-2 (public policy to "promote safety for persons and property in and connected with the use, operation, and equipment of vessels"), OCGA § 52-7-18 (d) ("Powered vessels approaching nonpowered vessels shall reduce their speed so that their wake shall not endanger the life or property of those occupying the nonpowered vessel.").⁷ As a result, we cannot say at this stage of the proceedings, as a matter of law, that a watercraft's contact with water, including a collision with a wall of water such as a wake,⁸ which results in swamping due to another's negligence, does not satisfy the first element of the impact rule.⁹ Compare Canberg v. City of Toccoa , 255 Ga. App. 890, 891 (1), (567 S.E.2d 21) (2002) (smoke from plaintiffs’ burning house, resulting in stinging, watery eyes, sufficient allegation of physical impact). See also Chambley v. Apple Restaurants, Inc. , 233 Ga. App. 498, 500 1, 504 S.E.2d 551 1998 (jury issue to decide "whether eating part of a salad containing a concealed, unwrapped condom is sufficient physical contact under the impact rule to permit recovery for damages").¹⁰ Accordingly, we agree with the trial court that a genuine issue of material fact remains as to whether the minor plaintiffs sustained a physical impact.

2. Next, Malibu asserts that the trial court erred in finding that the minor plaintiffs’ injuries "created a jury question as to whether the water impact caused the physical injur[ies]. ..." The trial court determined that the minor plaintiffs’ injuries "are evidence of injury sufficient to satisfy the second element of the impact rule and create a jury question as to whether the impact caused the physical injury." Again, we agree with the trial court on this issue.

To satisfy the second element of the impact rule, the physical impact sustained by the plaintiff must result in a physical injury. See, e.g., Hang , supra at 179, 585 S.E.2d 118. In this case, undisputed evidence revealed that each of the minor plaintiffs suffered some form of injury: Zack suffered a scrape on his stomach and Kayla sustained a bruise on her shin, while Josh began "vomiting and hyperventilating" following the collision with the water. Despite Malibu's arguments to the contrary, it is not dispositive that the minors did not seek treatment for these injuries or that these injuries were slight. Compare Wardlaw , supra at 241, 676 S.E.2d 858 (plaintiff suffered "muscle soreness and minor scratches"); Wilson , supra at 173-174 (...