Strickland v. Hodges

• Decision Date: 29 May 1975
• Docket Number: No. 2,No. 50330,50330,2
• Citation: 134 Ga.App. 909,216 S.E.2d 706
• Parties: R. H. STRICKLAND et al. v. R. F. HODGES
• Court: Georgia Court of Appeals

Page 706

216 S.E.2d 706

134 Ga.App. 909

R. H. STRICKLAND et al. v. R. F. HODGES.

No. 50330.

Court of Appeals of Georgia, Division No. 2.

May 29, 1975.

Verlyn C. Baker, Decatur, for appellants.

Dennis & Fain, Thomas S. Carlock, Mike Gorby, Atlanta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

Is there an independent right of action available to parents who are not present at an incident in which serious injuries are inflicted upon their child by the wilful and wanton negligence of a defendant so as to allow recovery for emotional distress and mental suffering which results from the parents learning of such injuries and seeing the injured child following the incident?

That question of first impression confronts us in this appeal by the parents from the grant of defendant's motion for partial summary judgment. This ruling struck from a three-count complaint those two counts which sought damages based upon 'great emotional distress' suffered from their learning that their eleven-year-old daughter had sustained serious injuries from a collision between an automobile driven by defendant while admittedly under the influence of intoxicants and a car in which the child was a passenger riding with other relatives. The parents were not present. There remains a single count by the father for medicals and loss of services with which this appeal is not concerned.

'The thrust of this appeal deals primarily with the problem of whether there is in independent cause of action for emotional harm suffered by a parent upon learning of the injury and the extent thereof the such child when (1) such injury resulted from the wilful and wanton negligence of the defendant; (2) the parent was not a witness to the incident causing such injury; (3) the parent was not nearby when the child was injured; (4) there was no impact to the plaintiff; (5) the negligent acts of the defendant were 'directed toward' the child and not the plaintiff and (6) the parent learned of the injury a short time afterward and then suffered emotional harm' (Appellant's first brief, page 7).

In an excellent and learned brief citing both foreign and Georgia decisions appellant's able and articulate advocate seeks to persuade this court to create such right of action. He points out that in dealing with negligence infliction of emotional distress the various jurisdictions have devised three theories under which defendants have been held liable to bystanders. These carry the appropriately descriptive names of 'impact', 'zone of danger', and 'fear for another' rules.

As the nomenclature indicates, the 'impact rule' required that defendant's negligent conduct result in actual bodily contact to the plaintiff. Excepting for special situations discussed hereafter, Georgia follows this doctrine. Blanchard v. Reliable Transfer Co., 71 Ga.App. 843(2), 82 S.E.2d 420; Kuhr Bros., Inc. v. Spahos, 89 Ga.App. 885, 890(4), 81 S.E.2d 491. Thus, in Southern R. Co. v. Jackson, 146 Ga. 243, 91 S.E. 28, a mother crossing railroad tracks was permitted to sue for her personal injuries sustained in a fall while avoiding the approaching engine operated in a grossly negligent manner, but in the second headnote our Supreme Court held that 'the fact that she witnessed the mangling of the child and became frightened and suffered a severe nervous shock therefrom would not entitle her to a recovery.' See the Annotation on this subject in 29 A.L.R.3d 1337 where the writer at page 1344 comments that on this subject 'the authorities are in a state of dissension probably unequaled in the law of torts.'

While recognizing these Georgia authorities to be controlling in a 'negligence' situation appellants' counsel urges that these cases should not be applied to a factual setting based on 'wilfulness and wantonness.' He argues that our court should hold that 'When a defendant acts in such a wilful and wanton manner and in complete disregard of the rights of others . . . he is thereby precluded from raising the question of foreseeability of causing emotional shock and distress to the parents of a child injured in such an incident.' (Appellant's first brief, page 17). In support of this proposal he cites these California and Hawaii decisions: Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968); Archibald Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723; Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970); and Leong v. Takasaki, 55 Haw. 398, 520 P.2d 758 (1974).

A reading of the California cases show their decisions were based upon both the 'zone of danger' rule, which permits recovery when it was foreseeable that the plaintiff would be in the area of possible physical peril when the negligent act occurred, and the 'fear for another' rule. Thus in the Dillon case a mother was given legal standing to sue when she witnessed her daughter being run over by defendant's car and in the Archibald case the mother arrived at the scene minutes after the accident occurred. But, as is pointed out in the appellee's brief, the most recent decision by a California appellate court, Powers v. Sissoev, 39 Cal.App.3d 865, 114 Cal.Rptr. 868, refused to extend this doctrine to a mother who was not at nor near the scene of the accident when her child was hurt, the emotional harm occurring when she was notified by telephone of the accident and went to see her daughter 30 to 60 minutes later.

Similarly, a recent decision by the Supreme Court of Hawaii limited the extent of the cases cited by appellant in a situation factually akin to that before us. In Kelley v. Kokua Sales and Supply, Ltd., 532 P.2d 673, a grandfather in California sustained a fatal heart attack upon learning by long distance telephone from Hawaii that his daughter and granddaughter had died as a result of an automobile accident. Despite a strong dissenting opinion based on the 'zone of danger' doctrine and foreseeability as previously applied in the cited Hawaiian cases, the majority drew a restrictive line. The majority noted that without a...