Owens v. Gateway Management Co., A97A0542

• Decision Date: 16 July 1997
• Docket Number: No. A97A0542,A97A0542
• Citation: 227 Ga.App. 815,490 S.E.2d 501
• Parties: , 97 FCDR 2866 OWENS v. GATEWAY MANAGEMENT COMPANY et al.
• Court: Georgia Court of Appeals

Page 501

490 S.E.2d 501

227 Ga.App. 815, 97 FCDR 2866

OWENS v. GATEWAY MANAGEMENT COMPANY et al.

No. A97A0542.

Court of Appeals of Georgia.

July 16, 1997.

Reconsideration Denied July 31, 1997.

Fine & Block, Kenneth I. Sokolov, Michael Sard, Atlanta, for appellant.

Hamilton, Westby, Marshall & Antonowich, David C. Marshall, Robert C. Buck, Atlanta, for appellees.

POPE, Presiding Judge.

Plaintiff Owens leased an apartment in a complex from defendant Gateway Management Company, Inc. At all times relevant, Gateway served as the managing agent for the complex's owner, defendant 2929 Panthersville Associates, which is a Georgia limited partnership. After two unknown gunmen kicked down the front door to the apartment and held plaintiff captive for fifteen minutes, plaintiff brought a personal injury suit against Gateway and Panthersville claiming they were liable to her due to their negligence in failing to maintain adequate security at the complex. ¹ She appeals from the trial court's grant of summary judgment to Gateway and Panthersville. Concluding that Gateway and Panthersville were entitled to summary judgment, we affirm.

A review of the record in this case demonstrates that the damages plaintiff seeks to recover from Gateway and Panthersville in her personal injury suit are all based on the alleged emotional distress plaintiff claims she suffered following her confrontation with the gunmen. In Georgia, however, it is well established that where a claim is premised on ordinary negligence, as is the case here, in order to recover emotional distress damages a plaintiff must generally show that he or she suffered actual physical injury resulting from some impact. Ryckeley v. Callaway, 261 Ga. 828, 412 S.E.2d 826 (1992); OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 665-666, 386 S.E.2d 146 (1989); Posey v. Medical Center-West, 184 Ga.App. 404, 405, 361 S.E.2d 505 (1987). In this case, plaintiff cannot make such a showing because it is undisputed that the gunmen never touched her in any fashion during their confrontation. And contrary to plaintiff's contention, the pecuniary loss rule is not applicable under the facts of this case because the only pecuniary loss plaintiff complains of on appeal is that incurred due to medical bills and lost time from work she allegedly incurred because of emotional distress following the incident in question. As such, we conclude that that pecuniary loss is not of the same type as that referred to in OB-GYN Assoc. of Albany because it is itself a form of emotional distress damage as opposed to pecuniary loss occurring "as [the] result of a tort involving an injury to the person even though this injury may not be physical [such as an injury to reputation]." 259 Ga. at 667(2)(B), 386 S.E.2d 146. To hold otherwise would be to allow bootstrapping of an extreme nature.

In the absence of any alleged damage to plaintiff resulting from her encounter with the gunmen other than alleged emotional distress damage, based on the above, we conclude that the trial court properly granted summary judgment to Gateway and Panthersville as to plaintiff's personal injury claim against them.

Judgment affirmed.

JOHNSON, J., concurs.

BLACKBURN, J., concurs specially.

BLACKBURN, Judge, concurring specially.

I fully concur with the majority's conclusion. This Court is constrained to follow our Supreme Court's rulings which require the majority's holding. I specially concur, however, as I can see no logical basis to follow the impact rule under the facts of this case. There is a conflict between the present application of the physical impact rule which limits recovery on the one hand, and the law which permits recovery, on the other hand, by the victim for intentional criminal acts when applied to cases involving a landlord's liability for negligently failing to prevent the criminal act. Our Supreme Court's holdings do not currently provide for an exception to the physical impact rule; however, such exception could easily be adopted without harming the basic purpose of the rule.

Under the present application of the physical impact rule, the plaintiff herein is barred from recovering from the defendants (landlord) by the fact that there was no physical impact or injury resulting to her from the criminal act, notwithstanding that she could recover from the perpetrators. See Carroll v. Rock, 220 Ga.App. 260, 262, 469 S.E.2d 391 (1...