Ryckeley v. Callaway

• Decision Date: 04 February 1992
• Docket Number: No. S91G1006,S91G1006
• Parties: RYCKELEY et al. v. CALLAWAY et al.
• Court: Georgia Supreme Court

Page 826

412 S.E.2d 826

261 Ga. 828

RYCKELEY et al. v. CALLAWAY et al.

No. S91G1006.

Supreme Court of Georgia.

Feb. 4, 1992.

Malcolm P. Smith, K. Scott Graham, Lokey & Bowden, Atlanta, Richard L. Collier, Beck, Owen & Murray, Griffin, for Ryckeley.

James A. White, Bischoff & White, M. Van Stephens, II, McNally, Fox, Mahler, Cameron & Stephens, Fayetteville, for Callaway et al.

BENHAM, Justice.

Appellees/plaintiffs brought suit against appellants/defendants for damages allegedly suffered by plaintiffs due to defendants' conduct in damaging part of a private burial ground in which some of plaintiffs' ancestors were buried. The trial court granted defendants a partial summary judgment on the issues of punitive damages and intentional infliction of emotional distress. The Court of Appeals reversed the trial court's judgment and, as to the claim for intentional infliction of emotional distress, held that there existed a question of fact concerning whether the damage done to the gravesites was done with reckless or wanton disregard for plaintiffs' rights. Callaway v. Ryckeley, 199 Ga.App. 314, 404 S.E.2d 650 (1991). We granted the writ of certiorari to consider the correctness of that ruling.

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. OB-GYN Assoc. v. Littleton, 259 Ga. 663, 386 S.E.2d 146 (1989). On the other hand, where the conduct is malicious, wilful or wanton, recovery can be had without the necessity of an impact. Westview Cemetery v. Blanchard, 234 Ga. 540, 216 S.E.2d 776 (1975).

Recognizing the principles stated above, the Court of Appeals examined the record and concluded that there was a question of fact concerning the character of defendants' conduct. The Court of Appeals did not, however, take into consideration a line of cases decided by that court which recognizes 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. That line of cases is epitomized by the decision in Sanders v. Brown, 178 Ga.App. 447(1), 343 S.E.2d 722 (1986). There one member of a family of plaintiffs was sprayed with insecticide by one of the defendants. Noting that the evidence would authorize a finding that the defendant's conduct was wanton and wilful, the Court of Appeals held that

although no physical injury or pecuniary loss was alleged or proven, [the plaintiff who was sprayed] was authorized to recover damages pursuant to OCGA § 51-12-6. [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.] " [Cit.] The incident would not, however, be a source of recovery for the mental distress of any of the other [plaintiffs]. "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. Here, there was no 'impact' inflicted on any of the other [plaintiffs] nor was there any wilful act directed toward them." [Cit.] [Id. at 450, 343...