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The Georgia Supreme Court has altered Georgia’s so-called “impact rule” to allow an injured mother who witnessed her injured child’s death to recover for emotional distress. A mother who was injured, along with her daughter, in an automobile collision, then witnessed her daughter’s unsuccessful hour-long fight for life can recover for negligent infliction of emotional distress, the court concluded. Writing for the court, Justice P. Harris Hines held that “There is no meritorious reason in an appropriate and compelling situation to refuse to extend recovery for emotional distress in an incident in which the distress is the result of physical injury negligently inflicted upon another.” When a parent and child both “sustain a direct physical impact and physical injuries through the negligence of another, and the child dies as the result of such negligence, the parent may attempt to recover for serious emotional distress from witnessing the child’s suffering and death without regard to whether the emotional trauma arises out of the physical injury to the parent,” Hines wrote. Georgia’s impact rule, which goes back more than 100 years, comes into play when a plaintiff attempts to recover for negligent infliction of emotional distress. Such recovery is allowed only in cases where the plaintiff suffers a physical injury. Since a series of decisions in the early 1990s, however, the Georgia Supreme Court had limited recovery for negligent infliction of emotional distress to recovery for the mental suffering caused by the plaintiff’s own injuries. But plaintiffs could not claim mental suffering for the injuries to a loved one. This week’s decision, which reversed both the Georgia Court of Appeals and the trial court, changes the impact rule to what it had been prior to 1991, allowing recovery for parents — who are themselves injured — for the pain of witnessing their child’s suffering and death. It also overruled a line of decisions since 1991. One of the winning lawyers in the case, Johnson & Ward partner William C. Lanham, who represented the mother, says the court’s decision “brings us back to where we were before.” Two justices, however, would have changed the impact rule even more. In a special concurrence, Justice Carol W. Hunstein wrote that there should be no requirement that the plaintiff suffer physical injury in order to recover for negligent infliction of emotional distress for witnessing her child’s death. Justice Leah J. Sears joined in the special concurrence. Lee v. State Farm Mutual Insurance Co., No. S99G1523 (Sup. Ct. Ga. July 10, 2000). The case stemmed from an automobile collision with an unknown hit-and-run driver in which Bridget Lee and her daughter both were badly injured. State Farm Mutual Insurance Co. and Allstate Insurance Co., which provided Lee’s uninsured motorist coverage, paid the policy limits on the daughter’s wrongful death claim, according to the Court of Appeals’ decision in the case, Lee v. State Farm, 238 Ga. App. 767 (1999). Bridget Lee sued in DeKalb State Court to recover for her own injuries and for the emotional distress of witnessing her child’s death. The Georgia Court of Appeals, in a full court decision, had rejected Lee’s emotional distress claim because it did not arise out of her own injuries. The court cited a 1991 Supreme Court case, OB-GYN Assoc. of Albany v. Littleton, 261 Ga. 664, referred to as “Littleton IV”. In Littleton IV, an appeal of a Court of Appeals’ decision, the justices repeated language from a footnote in the lower court’s decision. That footnote said a plaintiff’s recovery for emotional distress was limited to mental suffering incurred as a result of the plaintiff’s own injuries, not a third party’s injuries. 100 Years of Law Changed That language changed 100 years of law involving the impact rule, according to Lanham. “The whole piece of mischief was occasioned by that one footnote,” he says. So when Bridget Lee’s case came before the Court of Appeals, the majority concluded it had no choice but to deny her claim, citing Littleton IV. In this week’s decision, Hines wrote that three policy reasons exist for denying recovery for emotional distress unrelated to physical injury: fear of a flood of litigation, concern for fraudulent claims, and the difficulty of proving a causal connection between negligent conduct and emotional distress damages. Georgia’s current impact rule, Hines wrote, was shaped by the Littleton cases, and has three elements: a physical impact to the plaintiff; the physical impact injures the plaintiff; and the physical injury to the plaintiff causes the plaintiff’s mental distress. In Bridget Lee’s case, he concluded, the third element is clearly missing and any missing element in the past has negated a claim for negligent infliction of emotional distress. But Lee’s claim would be “in accord with the precepts of the impact approach and appropriately restricts recovery to those directly affected by the defendant’s negligent act or omission,” Hines wrote. While the circumstances of Lee’s case “clearly invite this Court to reject the impact approach” altogether, Hines concluded the rule was still beneficial and that “it would be imprudent to abandon over a hundred years of Georgia precedent.” In the special concurrence, Hunstein wrote that Georgia should join other states in recognizing “bystander liability,” and drop the “needlessly tentative and backwards-thinking” requirement that a plaintiff be physically injured. The impact rule, Hunstein concluded, “creates an irrational and indefensible distinction between injured and uninjured parents who witness a calamitous injury to a child.”

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