Oliver v. Mcdade

• Decision Date: 16 July 2014
• Docket Number: No. A14A0147.,A14A0147.
• Citation: 328 Ga.App. 368,762 S.E.2d 96
• Court: Georgia Court of Appeals
• Parties: OLIVER et al. v. McDADE et al.

328 Ga.App. 368

762 S.E.2d 96

OLIVER et al.

v.McDADE et al.

No. A14A0147.

Court of Appeals of Georgia.

July 16, 2014.

Stephanie Frasure Brown, Robert Peter Marcovitch, John Kirk Train IV, Joshua Steven Wood, Atlanta, Scott Wayne McMickle, for Appellant.

Caleb Frank Walker, Katherine Lee McArthur, Macon, for Appellee.

DOYLE, Presiding Judge.

This is an interlocutory appeal from the trial court's denial of a defense motion for partial summary judgment on the issue of whether the plaintiff in a personal injury action arising from a motor vehicle collision may recover damages for emotional distress under Georgia's “pecuniary loss” rule. Because there exist genuine issues of material fact and the trial court did not err as a matter of law, we affirm.

Summary judgment is appropriate only if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ¹ On appeal from the denial of summary judgment, our review is de novo, and we construe the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving party.² “Moreover, we will affirm a trial court's denial of a motion for summary judgment if it is right for any reason.” ³

So construed, the evidence shows that John McDade was riding as a passenger in his own truck, which was being driven by his close friend Matthew Wood on I–16 in Dublin, Georgia. McDade, Wood, and others were returning home late at night from a dirt car race in which Wood had competed, and Wood was towing his race car on a trailer behind McDade's truck. Just after driving the truck down the on-ramp onto the interstate, Wood noticed that something on the trailer was not secured, and he pulled over to the shoulder. Wood then exited the truck and walked back toward the trailer.

A tractor-trailer owned by Crider Transportation and operated by Jerome Oliver swerved onto the shoulder and struck Wood's trailer and McDade's truck. Wood was crushed between the trailer and the truck and killed instantly. The impact threw McDade against the interior of his truck, shattered the glass in the rear of the truck's cab, and propelled blood and tissue from Wood's body onto McDade. McDade then got out of his truck, discovered Wood's mangled body lying partially in the road, and protected it from further damage by passing vehicles until emergency personnel arrived.

Due to the collision, McDade has suffered neck, back and knee injuries, as well as headaches, insomnia, flashbacks, anxiety, depression and suicidal thoughts. He sought psychiatric help, was diagnosed as suffering from major depression as a result of the collision, and was prescribed various medications.

Based on the collision, McDade brought a negligence claim against Oliver, Crider, and Crider's liability insurance carrier. The defendants sought partial summary judgment on any of McDade's claims based on emotional distress arising from having witnessed the injuries to Wood. The trial court initially granted the defendants' motion, ruling that Georgia's impact rule bars bystanders from recovering damages for emotional distress resulting from witnessing another person's injuries, but later the trial court granted a motion for reconsideration, finding that McDade could pursue a claim for emotional distress under the pecuniary loss rule. This Court granted the defendants' application for interlocutory review, and this appeal followed.

1. It is undisputed that this case involves a collision resulting in physical injury to the plaintiff. Despite the defendants' characterization of McDade's claims as including emotional distress solely resulting from viewing his dead friend, McDade's complaint simply asserts a straightforward negligence claim and alleges that “all of his injuries, damages and suffering were the direct result of and proximately caused by the negligence of the Defendants.” The complaint does not seek to separately recover for the emotional distress McDade experienced from witnessing his friend's suffering and death, nor does it parse out certain portions of damages that specifically arise therefrom. Further, McDade's deposition testimony does not establish that a discrete portion of his emotional distress was due to the traumatic experience of viewing his friend's remains. Rather, when asked whether his emotional problems were a result of “what you saw that night or ... your own injuries,” McDade replied, “I guess you'd say both.” When pressed for clarification, McDade explained, “I don't know how to answer that.... It was being hurt, and then—being hurt, not being at work. I stopped getting paid in February. I haven't had income since....” Thus, neither the complaint nor McDade's deposition testimony sets out any facts showing that a portion of his emotional distress arises solely from witnessing the injuries to his friend or could be apportioned to his nonphysical injuries as opposed to his physical injuries. At the very least there is a question of fact on this issue, therefore partial summary judgment is not appropriate at this time.

2. Nevertheless, to the extent that making such a distinction is possible based on the evidence in the case, McDade can recover emotional distress damages under the pecuniary loss rule. As correctly stated in Nationwide Mut. Fire Ins. Co. v. Lam.,⁴ “a plaintiff may ... recover damages for emotional distress flowing from a defendant's negligence, notwithstanding the absence of physical injury. But these damages are recoverable only if the plaintiff has suffered a pecuniary loss and has suffered an injury to the person, albeit not physical.” ⁵ The requirement of an identifiable injury imports an objective benchmark that a plaintiff must meet before recovering emotional distress damages. This objective benchmark safeguards against the dissent's concerns that subjective emotional distress damages may be invented out of whole cloth.⁶

Here, we have evidence of identifiable nonphysical injuries (including an episode of depression) as well as pecuniary loss (the cost of medical treatment arising from the depression). Therefore, the trial court correctly determined that McDade can seek emotional distress damages under the pecuniary loss rule. ⁷

Judgment affirmed.

RAY, J., concurs.

PHIPPS, C.J., BARNES, P.J., MILLER and McFADDEN, JJ., concur fully and specially.

BOGGS, J., concurs specially and in the judgment.

DILLARD, BRANCH, McMILLIAN, JJ., concur in Division 1 and in the judgment.

ANDREWS, P.J., dissents.

McFADDEN, Judge, concurring fully and specially.

I agree with most of what the majority has written. I disagree only with the language at Division 2, notes 5 and 6, which undertakes to disapprove prior case law. That undertaking is not necessary to our decision, and that language is therefore dicta. The ruling on appeal is the trial court's determination that McDade may pursue a claim for emotional distress under the pecuniary loss rule. That ruling was correct and should be affirmed.

Damages for negligent infliction of emotional distress are usually not recoverable. But the impact rule and the pecuniary loss rule authorize recovery for such damages. “A claim for emotional distress damages caused by negligence must be supported by evidence that the plaintiff suffered an impact resulting in physical injury or pecuniary loss resulting from an injury to the person.” Travis Pruitt & Assocs., P.C. v. Hooper, 277 Ga.App. 1, 5, 625 S.E.2d 445 (2005).

The impact rule, generally speaking, authorizes recovery for emotional distress in negligence actions where the emotional distress is caused by a physical injury. “The 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.” Bruscato v. O'Brien, 307 Ga.App. 452, 456–457(1), 705 S.E.2d 275 (2010) (citations and punctuation omitted).

The pecuniary loss rule allows recovery for emotional distress in a negligence action even though there may be an injury to the person that is not physical.

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. ... We reiterate the rule that for 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. An injury to the reputation would be such an injury.

OB–GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 666–667(2)(B), 386 S.E.2d 146 (1989), disapproved in part on other grounds, Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 588(III) n. 8, 533 S.E.2d 82 (2000) (citation omitted, punctuation in original).

In Nationwide Mut. Fire Ins. Co. v. Lam, 248 Ga.App. 134, 546 S.E.2d 283 (2001), we applied the pecuniary loss rule to allow emotional distress damages in an automobile collision case where there was no physical injury. In that case, although the plaintiff Lam was not physically injured, after the wreck she had anxiety from having witnessed the oncoming vehicle, and there was evidence that the collision aggravated her pre-existing mental illness. Id. at 135, 546 S.E.2d 283. While Lam could not recover under the impact rule since there was no physical injury, we held that she could recover under the pecuniary loss rule. Id. at 136(1), 138(2), 546 S.E.2d 283. As this court explained, the non-physical injury requirement under the pecuniary loss rule is not limited to the example of damage to reputation as set forth in the Littleton case. Rather, such a non-physical injury would also include a mental injury since “[a] mental injury, or aggravation of a pre-existing mental...