For over 100 years, Georgia’s impact rule has prohibited recovery in a negligence cause of action where there has been no physical impact to a
For over 100 years, Georgia’s impact rule has prohibited recovery in a negligence cause of action where there has been no physical impact to a plaintiff in the course of an alleged wrong. The Supreme Court of Georgia explained the parameters of the impact rule in Ryckeley v. Callaway, 261 Ga. 828, 412 S.E.2d 826 (1992):
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. On the other hand, where the conduct is malicious, willful or wanton, recovery can be had without the necessity of an impact.
The Georgia Court of Appeals effectively eliminated the impact rule with its recent decision in Oliver v. McDade, 328 Ga. App. 368 (2014). McDade was riding as a passenger in his own truck, which was being driven by his close friend, Wood, on I–16 in Dublin, Georgia. After noticing a problem with the trailer, Wood pulled over to the shoulder and exited the vehicle. A tractor-trailer owned by Crider Transportation swerved onto the shoulder and struck the trailer, killing Wood. 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. Due to the collision, McDade 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.
McDade brought a negligence claim against Crider, its employee/driver, and its insurer. The defendants sought partial summary judgment on McDade’s claims based on emotional distress arising from having witnessed the injuries to Wood.
Citing to a 2001 appellate court opinion, Nationwide v. Lam, it was held that McDade could recover emotional distress damages under the pecuniary loss rule. The pecuniary loss rule was stated by the Court of Appeals as allowing recovery of damages for emotional distress flowing from a defendant’s negligence, notwithstanding the absence of physical injury, if the plaintiff has suffered a pecuniary loss and has suffered an injury to the person, albeit not physical. The Court of Appeals held that emotional distress damages may be recovered where there is evidence of identifiable nonphysical injuries (there, an episode of depression) as well as pecuniary loss (the cost of medical treatment arising from the depression).
As aptly state by the dissent in Oliver, this decision “eviscerates the impact rule, permits litigants to routinely obtain damages for emotional distress without physical injury, and, by doing so, impermissibly supplies a remedy where none existed before.” The Oliver decision expands the pecuniary loss rule to the point that it renders meaningless the long-standing impact rule. The Georgia Supreme Court, which has waded in on the scope of the impact rule on prior occasions and has chosen to leave it relatively intact, granted certiorari to review theOliver decision. The Supreme Court will have to balance the long-standing impact rule with the pecuniary loss rule. Oral argument on these issues was made before the Court early this year. We are all anxiously awaiting what will hopefully be an affirmation of the impact rule’s important role in Georgia tort law.