OB-GYN Associates of Albany v. Littleton
| Decision Date | 05 December 1989 |
| Docket Number | No. S89G0538,OB-GYN,S89G0538 |
| Citation | 259 Ga. 663,386 S.E.2d 146 |
| Parties | ASSOCIATES OF ALBANY et al. v. LITTLETON et al. |
| Court | Georgia Supreme Court |
Dawn G. Benson, G. Stuart Watson, Albany, Watson, Spence, Low & Chambless, for appellants.
William S. Stone, for appellees.
Alston & Bird, G. Conley Ingram, Judson Graves, Richard L. Greene, Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., amici curiae.
James E. Butler, Jr., Georgia Trial Lawyers Associates, Columbus, for Billy J. Littleton et al.
Plaintiffs/appellees Littleton sued appellants for the allegedly negligent delivery of their infant daughter which resulted in the baby's death two days after delivery. They sued in four counts: Count 1 was for the wrongful death of the daughter under OCGA §§ 19-7-1(c) and 51-4-4; counts 2 and 3 were for loss of her services and for money paid to defendants for services; count 4 was for the mother's mental suffering and emotional distress. The trial court granted summary judgment on count 4, and the Court of Appeals reversed. Littleton v. OB-GYN Associates, P.C., 192 Ga.App. 634, 385 S.E.2d 743 (1989). We granted appellants' application for certiorari to resolve two issues: 1) whether Mrs. Littleton will be allowed to recover for emotional and mental distress as well as for the full value of the life of her deceased infant without reduction for any expenses of decedent had she lived; 2) whether the facts of this case create a jury question on the issue of physical injury to the mother so as to give rise to a claim for damages for the resulting emotional distress and mental anguish.
We conclude that recovery for emotional distress is not available in a wrongful death action. We conclude that when Mrs. Littleton entered the delivery room there were two patients: Mrs. Littleton and her unborn child. While Mrs. Littleton is not able to sue for emotional distress as part of her wrongful death action for the death of her daughter, she may bring a claim based on malpractice resulting in injuries to her person. This claim may include a claim for compensation for any emotional distress which is a consequential damage resulting from those injuries.
1. Recovery for wrongful death in Georgia is limited to the full value of the life without deduction for necessary or personal expenses of decedent and does not include recovery for mental anguish or emotional distress. OCGA §§ 19-7-1, 51-4-4, 51-4-1.
The Court of Appeals found that the claim asserted by Mrs. Littleton here was recognized in Smith v. Overby, 30 Ga. 241 (1860). In that case the Smiths sued to recover for the wife's bodily injury and mental anguish due to the death of her child during delivery. The plaintiffs claimed that they were damaged in the amount of $25,000.00 due to her physical suffering and the destruction of her health and peace of mind.
Smith v. Overby involved particularly heartbreaking facts. The child was deliberately dismembered during the delivery by the doctor, who believed this action necessary to save the mother. The case was reversed because the judge had not allowed the jury to consider the claim for mental anguish for the unnecessary destruction and the death of the child. Smith v. Overby, supra, has little application to the present case. As will be discussed below, a claim for emotional distress is not available in Georgia in a wrongful death action. On the other hand, a person who has suffered a physical injury resulting from the negligence of another may claim damages for emotional distress in the action to recover for the injury.
The Court of Appeals distinguished Bell v. Sigal, 129 Ga.App. 249, 199 S.E.2d 355 (1973). In Bell v. Sigal the mother of a minor child filed an action against two physicians for negligence in treatment which resulted in his death. She sought damages for the full value of his life. The mother and father then filed another action for breach of contract and claimed damages for solatium in that action. In affirming the trial court's dismissal of the contract action, the Court of Appeals found that the plaintiffs could not proceed in two actions and recover twice. The court further said, "[w]e have found no Georgia case, either in tort or contract, where damages for mental anguish of a relative or friend due solely to grief over injury to another was compensable." 129 Ga.App. at 250, 199 S.E.2d 355. Here the Court of Appeals distinguished Bell v. Sigal because the plaintiff in that case sought to recover both in contract and in tort. We do not find that this distinction dilutes the conclusion of the Bell v. Sigal court that there is no precedent in Georgia for recovery of damages for mental anguish or emotional distress in a wrongful death action. See also, Young Men's Christian Association v. Bailey, 112 Ga.App. 684, 146 S.E.2d 324 (1965), cert. denied 385 U.S. 868, 87 S.Ct. 131, 17 L.Ed.2d 95 (1966); Hudson v. Cole, 102 Ga.App. 300, 115 S.E.2d 825 (1960) in which the Court of Appeals held: The emotional upset of the person bringing the action is no part of the measure of damages under Code Ann. § 105-1307, which clearly states that the mother or father shall be entitled to recover the full value of the life of the child, which full value is defined in Code § 105-1308, and in the numerous decisions thereunder, in economic terms, but not in terms of emotion. [Id., at 304, 115 S.E.2d 825].
2. In this case, however, the claim for emotional distress is not part of the wrongful death claim. Rather, it is part of a separate count in which Mrs. Littleton seeks damages for mental distress. The Restatement of Torts, Second, § 456 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 the bodily harm or from the conduct which causes it, and (b) further bodily harm resulting from such emotional disturbance.
Georgia follows the so-called "impact rule," which requires that, there must have been actual bodily contact with plaintiff as a result of defendant's conduct for a claim for emotional distress to lie. The Georgia rule was clearly stated in Candler v. Smith, 50 Ga.App. 667, 673, 179 S.E. 395 (1934):
Mere wrongful acts of negligence will authorize a recovery where the resulting fright, shock, or mental suffering is attended with actual immediate physical injury, or where from the nature of the fright or mental suffering there naturally follows as a direct consequence physical or mental impairment. [Cits.] In either of such events the fright or mental suffering can itself be considered, together with the accompanying physical injury or resulting physical impairment, as an element of damage.
See also, Howard v. Bloodworth, 137 Ga.App. 478, 224 S.E.2d 122 (1976); Marcelli v. Teasley, 72 Ga.App. 421, 33 S.E.2d 836 (1945); Goddard v. Watters, 14 Ga.App. 722, 82 S.E. 304 (1914).
In Christy Brothers Circus v. Turnage, 38 Ga.App. 581, 144 S.E. 680 (1928), the plaintiff was allowed to seek damages for emotional distress resulting from the impact of a circus horse's evacuating its bowels in her lap. Christy Brothers Circus constitutes an expansion of the impact rule in its holding that
[any] unlawful touching of a person's body, although no actual physical hurt may ensue therefrom, yet, since it violates a personal right, constitutes a physical injury to that person.... The unlawful touching need not be direct, but may be indirect, as by the precipitation upon the body of a person of any material substance. [Id. at 581, 144 S.E. 680.]
As noted in Prosser & Keeton, Law of Torts, 5th ed. § 54, p. 364, Christy Brothers Circus reduces the requirement that there be some physical injury or at least an impact for the recovery of damages for emotional distress as a result of defendant's conduct to an absurdity.
In Westview Cemetery v. Blanchard, 234 Ga. 540, 544, 216 S.E.2d 776 (1975), we held, in construing what is now OCGA § 51-12-6:
This section does not create a cause of action for injury to peace, feelings or happiness but prescribes the measure of recovery where such a cause of action exists. [Cit.] If 'mental pain and suffering' is not accompanied by physical injury or pecuniary loss, recovery is allowed only if the conduct complained of was 'malicious, wilful, or wanton.' [Cit.] The measure of damages under this section is unique in that the jury is permitted to consider the worldly circumstances of the parties.
We take this opportunity to clarify our rule regarding impact and now hold that the impact which will support a claim for damages for emotional distress must result in a physical injury. Christy Brothers Circus v. Turnage, supra, is overruled.
We turn next to Mrs. Littleton's contention that pecuniary loss which she suffered will support a claim for damages for emotional and mental distress. Interpreting our case of Chapman v. Western Union Telegraph Co., 88 Ga. 763, 15 S.E. 901 (1892), the Court of Appeals in Kuhr Brothers v. Spahos, 89 Ga.App. 885, 890, 81 S.E.2d 491 (1954), overruled on other grounds, extracted the following principle:
In cases where mere negligence is relied on, before damages for mental pain and suffering are allowable, there must also be an actual physical injury to the person, or a pecuniary loss resulting from an injury to the person which is not physical; such an injury to a person's reputation, or the mental pain and suffering must cause a physical injury to the person. [Emphasis supplied.]
See Davis v. Hall, 21 Ga.App. 265, 94 S.E. 274 (1917), cited by the court as stating the correct rule as follows: " 'Where the injury complained of is not a personal tort, but an injury to property, there can be no recovery for mental suffering.' " Kuhr Brothers v. Spahos, supra, at 890, 81 S.E.2d 491. See Montega Corp. v. Hazelrigs, 229 Ga. 126, 189 S.E.2d...
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