1 OCGA § 9–11–5 6 (c). WHOLE COURT NOTICE: Motions for recons i deration must be physically

received

in our clerk’s of

fi ce within ten days of the date of decision to be deemed timely filed. http:/ /www .gaappeal s.us/rul es/ July 16, 2014



## In the Court of Appeals of Georgia
A14A0147. OLIV ER et al . v. MCD ADE e t al. DO-008 D OYLE , Presiding Judge. This is an inter

locutory appeal fr om the trial court’ s denial of

a defense motion for partial s ummary j udgmen t on the issue

of whether the plain

tiff in a personal injury action arising fr

om a m otor vehicl e collision

may recov er d amages for em otional distress unde r Georg ia’s “pecuniary loss” rule . Becau se there exist genuin e issues of material fact and t he trial cou rt did no t err as a matter of law, we aff irm. Summ ary judgm ent is appr

opriate onl

y if th e pleading s and evidenc e “sho w that there is n o genuine iss ue as to any material fac t and that th e moving party is entitled to a j udgmen

t as a matter of law.” 1 On appeal from the denial of sum mary judgm ent, our review is de novo, and we co nstrue the evidence a nd all rea sonable2 See Bank of North Ga. v. Windermere D ev. , 316 Ga. A pp. 33, 34 ( 728 SE2d 714) (2012).

3 Lowry v. Cochran , 305 Ga. A pp. 240, 24 1 (699 SE2 d 325) (2010) (citatio n omitted). 2 in ferences drawn f

rom i t in the light

most f avorable to the nonm

oving part y. 2 “Moreover, we will

a ffirm a tr ial court’ s denial of

a motion for sum

mary judgm ent if it is rig ht for any reason .” 3 So construed, the evidence shows that John McDade was riding as a passenger in his own truck, which was being driven by his close fr iend Matthew Wood o n I-16 in Dublin, G eor gia. McDade , Wood, and others were returning hom e late at night from a dirt ca r race in which W ood had com peted, a nd Wood w as towing

his race car
on a trailer behind McDade’s truck. Just aft e r dr iv in g t he t ruc k d own th e on -ra mp onto the interstate, Wood noticed that somet

hing on the tr

ailer w as not secu

red, and he pulled over to the shoulder. Wood then exited the truck and walked back toward the trailer
. A tractor-trai ler own ed by Crider Transpor tation and oper ated by Jerome Oliver swerved onto the sh ould er and struc k Wood ’s trai ler an d McDad e’s truck. Wood was crushedbetween

the trail er and the

truck and k

ille d inst antly. The im

pact threw McDadeagainst

the in terio r of hi s truc k, sha ttere d the glas s in t he rear of the truck ’s3

cab, and propelled blood and tiss ue from Wood’s body onto McDade. McDade then got out of his truck, discovered Wood’s mangled body ly ing partially in t

he road, and protectedit from

further damage by pa ssing vehicl e s unt il emergency personnel arrived. Due to the collisi on, McDade has suff ered nec k, back and kne e injuri es, as w ell
as headache s, insom

nia, fla shbacks, a

nxiety , depres sion and sui cid al thoug hts. He sought psychi atric help, wa s diagnosed a s sufferi ng from maj or depres sion as a

result of the coll ision, an d was prescri bed vario us medication s. Based on the collision, McDade brought a negligence claim against Oliver, Crider, and Crider’s liability insurance carri er. The defendants sought partial
summ ary j udgmen

t on any of McD ade ’s c lai ms based on em otional distr

ess arisin g from h avin g witnesse d the injur ies to W ood. The trial cour t initially granted th e defendant s’ motion , ruling th at Georg ia’s im pact rul e bars bystanders from recover in g damages for emotional distress resulting fr om witnessin g another person’s injuries, but later the trial court granted a motion for rec onside ration, f inding that M cDade could pursue a claim for em

otional distress un der the pe cuniary loss rule. This Court granted the defendan ts’ appl ication fo r interlocutory r eview, and this app eal followed
.4

1. It is undispu

ted that thi s case invo lves a coll ision resulting in physical injury to the pl aint iff. Des pite the de fenda nts’ c harac terization of McDade’s claim s as including emotional distress so lely r esulting fr

om vie wing his dead f

riend , McDad e’s compl aint simply asserts a stra

ightforward negligence claim and allege s that “ all of his injuries, damages and suffering w ere the directresult of and proximately ca used by the negligence of the Defendants.” The com plaint does not seek to separa tely
recover for th e emotio nal d istre ss McD ade ex perie nced f rom witn essi ng hi s frie nd’s sufferin g and death, nor does it parse o ut certai n portions of

damages that spe cificall

y arise therefr

om. F urther, McDade ’s deposi tion testim ony does not establi sh that a discrete portion of h is e motio nal distre ss was due to the tra

umati c experience of view ing hi s fr ien d’s rema in s. R ath er, whe n as ked whe th er h is emot io nal pro bl ems
were a result of “what you s aw that nig ht or . . . your ow n injurie s,” McD ade replied, “I guess you’d say both.” When pr essed for cl arifi catio n, McDa de exp lain ed, “I don ’t knowhow to answer that. . . . It was being hurt, and then – being hurt , no t being at work. I stopped ge tting paid in F e bruary . I haven ’t had in come since. . . .” Thus, neither the com plaint nor M cDade’ s deposition t estim ony sets out any

facts showing that a portion of

his em otional distr

ess arise s solely

from witnessing

the injur ies to his friend or

could be appo rti oned to his non physic al injur

ies as oppose d to his4 248 Ga. App. 134 (546 SE2d 283) (2001).
5 (Em phasis suppli ed.) Id. at 138 (2). While t he result in Lam is corre ct, the di ssent appropria tely argues that a recover

y fo r emotional distress cannot be based solely on an injury to propert

y . Theref ore, to t he extent that language in Lam suggests otherwise, such language should be disapproved. See id. 138 (2) (noting the d ama ge to Lam’ s personal property as support f

or her pecun iary loss – in addit ion to her ho spital and

other tre atment expenses arising from her psychological injury ). 5 physical injuries. At the very least there is a question of fact on this issue, therefore partial summa

ry judgm ent is not appropriate at this time. 2. Neverth eless, to the extent that m aking such a

distinction

is possible based
on the evidence in the case, McDade can recover emotional distress damages under the pecuniary loss rule. As correctly stated in Nationwide

Mut. F ire Ins. Co. v. Lam ., 4 “apl ain ti ff ma y. . . r eco ver dama ges for emot io nal di st res s fl owi ng fro m a defen dant ’s n eg ligence, notwithstanding the absence of physical injury . But thes e damages are recoverable only if the plaintiff has suffere d a pecuniary loss and has suffered an injury to the person, alb eit not ph ysical.” 5 The requ i rement of an identifia ble injury im

ports an objective benchmark that a plaintiff must m eet before
recover ing emoti onal distre ss damages. Thi s objective benchm ark safe guards against6 In light of the prese nce of an i d entifiabl e psycho logical inj ury to McDade, the

present case is di stinct from Owens v. Gateway Mgmt. Co. , 227 Ga. A

pp. 815 (490 SE2d 501) (1997). Inthat case , the plaintiff experienced f ear due to being held

at gunpoint, and the Court held

that th is fear a lone was, in essence , em otional distr ess – not a se

parate psychological injury . In such a situation, the Cour

t cor rec tl y hel d t hat , ab sen t s ome physical or nonphy sical inj ury to the plainti ff’s person, she could n ot recoveremotional distress damages. But f

or similar rea sons, the dissent is corre ct that Hall County Memoria l Park, Inc. v. B aker , 145 Ga. App. 296 (243 SE2d 689) (1978), was wrongly decided. In that case, the plaintiff suffered no separate injury other t han th e grief c aused by the improper burial loc ation of

her deceased husband. In essence, her only alleged injury was h eremoti onal distress, which is a n elem ent of dam

ages but not a separa

te injur y for purposes of the pecuniary loss rule. Accordingly, to the exte ntthat Baker holds otherwise, it should be ov erruled.

7 Cf. Travis Pruitt & Assocs., P.C. v. Hooper , 277 Ga. App. 1, 5 (2) (625 S E2d 445) (2005) (“A claim

for emotional distress damages caused by negligence must be supported by evidence thatthe plaintiff suffered an impact resulting in physical injury or pecuniary loss resulting from an injury to the person.”)
. 6 the dissen t’s conc erns that s ubjectiv e em otional distr ess dam ages m ay be invent ed ou t of whole c loth. 6 Here, we have evidence of identifiable n on physical injuries (including an episode of depres sion) as w ell as pecuniary loss (the c ost

of me dical tre atment arising from the depression). Therefore, the trial court cor rectly determ ined that M cDade can seek emotional distress damages under the pecuniary loss rule. 7 Judgment affirmed. Ra

y, J., concur

s. Phipps , C.J. , Barnes

, P.J ., Mil ler and M cFadd en, JJ., c oncur fully and speciall y. Boggs , J., concurs spe cially and i n the7

judgment. Dillard, Branch, McMilli an, JJ., c oncur in Di

vision 1 and in the judgment. Andrews, P.J. , dissents

.A14A0147 . OLIVER et al. v. MCDADE et al.

M C F ADDEN , Judge, con curring fu lly and specia lly. I agree with most of what the m ajority has written. I

disagre e only

with the language atDivision 2, notes 5 a nd 6, which u ndertakes to disap prove pri or case law. That undertakin g is not nece ssary to our decision, and that language is therefore dicta. The rul ing on appeal is the trial court’s determination that McDade m ay pursue a claim for emotional distress under the pecuniary loss rule. That rul ing was co rrect a nd should be affirmed. Damages for neglig ent inflic tion of em otional distr

ess are us ually n ot recoverable. But the impact rule and the pecuniary loss ru le author ize rec overy for2

such damages. “

A claim for em otional distr

ess dam ages caus ed by ne gligence m ust be supported by evidence that the p laintif f suffered an impact resulting in physical injury or p ecu nia ry lo ss r esu lti ng f rom an inju ry t o the pe rson.” Travis Pr uitt & Assocs., P.C. v. Hooper , 277 Ga. App. 1, 5 (625 SE2d 445) (2005). The impac t rule, g e ne rally speaking, authorize s recover y for emoti onal distre ss in negligence actions where the emoti ona l di str ess is c aus ed b y a ph ysic al i njur y. “The current Georgia

impac t rule has three elements : (1) a phy sical im pact to the plaintiff; (2) the phy sical im pact caus es phys i cal injury to the plain

tiff; and (3) the physical injury

to the plain

tiff cau ses the plaintiff’ s ment a l su ffering or emotional distress .” Bruscato v. O’Brien , 307 Ga. A pp. 452, 456-45 7 (1) (705 S E2d 275) ( 2010) (citation s and pun ctuation omitted). The pecuniar

y loss r ule allows recovery

for em otional distr

ess in a negligence action ev en thoug h there may be an injury to th e person th at is not p hysical. In cases where mere

negligence is relied on, before damages for mental pain and suffe ring are allowabl e, there must also be an actual physical injury to the pers on, or a pecuniary l oss resulting

from an inju ry to the person which is not

physical . . . .W e reiterate the r ule t hat for a pecuniary loss to support a

claim for dam ages for emotiona

l distress, the pecuniary loss mu st occur a s a result of a tort involving an injur y to the person even though t

his injury may no t be physic al. An injury to the reputatio n would be such an in jury.3

OB- GYN Assoc. of Albany v. Little ton , 259 Ga. 663, 666-66 7 (2) (B) (386 SE2d 146) (1989) , disappro ved in part on other g rounds, Lee v. State Farm Mut. Ins . Co. , 27 2 Ga. 583, 588 (III) n. 8 (533 SE2d 82) (2000) (citat ion omitt ed, punctu ation in original ). In Nationwide

Mut. F ire Ins. Co. v. Lam , 248 Ga. A pp. 134 (546 SE 2d 283) (2001), we applied the pecuniary loss rule to allow em otional distress damages in an autom obile collision c ase wher e there w as no phy sical inj ury. In that ca se, altho ugh t he plaintiff

Lam was not phy sically

injured , after

the wre ck she had a

nxiety from having witnessed the oncoming vehicle, an d th ere wa s evidence that the c ollision aggravatedher pre- existingmenta l illness. Id. at 135
. While Lam could not recover underthe impact rule since t he re was n o physic al injur y, w e held that

she could
recover under the pecuniary

loss rule. Id. at 136 (1), 138 ( 2). As t his court expl ained, the non-physical injury requirem ent underthe pecuni ary l oss rule is not limited to the
exam ple of dam age to rep utation as set forth in the Littleton case. Rather, such a nonphysical injury would als o includ e a mental injury since “[a] mental inju ry, o r aggravati on of a pre- existing mental illne ss, is clear ly an injury to the person.” Id. at 138 (2). So d esp ite the abs enc e of a phys ical inju ry, Lam “did suffer an injury

to her person, consisting of

aggravation of her p re-exist ing menta l illness, which bef

ore the4

collision had been stable for

year s.” Id. Thus, w e conclude d that she c ould pursueher claim for emotional distress damages basedon her mental injury and pecuniary

loss, and that t he “tria l cou rt cor rectl y denie d [th e defen se] mo tion for summar y judgment.” Id. Compare Owens v. Gateway Mgmt. Co. , 227 Ga. App. 815, 816 (490 SE2d 501) (1997) (f

inding pecuni ary l oss rule inapplicable for lost time from work and medic al bills fol lowing inci dent giving r ise to claim of n e gligent failureto maintain secur ity at apartment complex ). Likewise, in the instant ca se, in add ition to the d amag e to his vehi cle and his
own physic al injur

ies, ther e is evidencethat after the colli sionMcDade has suffered mental injurie s, including maj or depres sion, and t hat he is underpsychi atric ca re for such injurie s. Acco rdingly , he may pursue his claim for emotional distress damages arising from his mental injur

ies. See Lam , supra a

t 138 (2) (p laintiff sufferin g nonphysical inju ry t o the pers on may recover damages for em

otional distr

ess flowing from defendant’s negligence). The trialcourt ther efore did not err in denyin g partial
summar y judgm ent based on

the pec uni ary lo ss r ule . See gen eral ly Lee , supraat 588 (III) (rever sing sum

mary judgm ent to defendants b y ho lding that parent could seek to recover

for em otional distr

ess from witnessin g death of c hild from aut omobi le5

collision “without regard to whether the em otional trauma arises out of the physical injury to the pa rent”). Contrary to the disse nt’s cla

ims, affirm

ing the tria

l court’ s ruling does not

“ eviscerat e[] the im

pact rule , perm

it[] li tigants to r

outinely obtain dam

ages for emotional distress w ithout phy sical inj ury, [or] imper missib ly su

ppl[ y] a rem edy where non e ex ist ed b efo re.” Rath er, s uch an af firma nce simp ly a pplies controllin g authority from both this court and the Georgia Supreme Court, allowing for em otional distress damages under t he well- establishe d pecun iary loss rule in limited circumstances l ike thos e found in this case. As recounte d above, ou r Suprem e Court ha s establish ed that unde r th e pecuniary loss rule, a claim for emoti onal distre ss dam ages will lie wher e the loss occurred as a result of “ an injur

y to the person even thou g h this injur y m ay not b e physical.” OB-GYN Assoc. , supra at 66 7 (2) (citat ion omitted)
. Lam , supra, correct ly applied this rule to allow for emotional distress damages where the non-physical injur yto the person was a menta l illness . In all material res pects, Lam is factually identic al to, and manda

tes the hold

ing in, theinstant ca se. Inde ed, the di ssent, by resorting to the argument that we should overrule Lam , which the Supreme Court6

previously

declined to review on certior ari, im plicitly recogniz es that Lam is directly on poin t and cons titutes c ontroll ing auth ority. Likewise, in the factually similar case of Lee , the Supre me C ourt held that when
a parent and child sustain a direct physical impact and physical injuries through the negligence of another, and the child dies as the r e sult of such negligence , the parent ma y atte mpt to recove r for ser

ious emotional distress from

witnessin g the child’ s sufferi ng and death without regard to whether

the emotional tra

uma a rises out of

the phy sical inj ury to the parent. This is in a ccord wi th the prec epts of the impac t approac h and ap propriate ly

restric ts recove ry to t hose direc tly af

fected by

th e defendant ’s negligen t act or omissio n. Lee , supra at 58 8 (III). In rea chi ng th is dec is io n, t he S up reme Court rec ounted the hi story a ndpolicy behind the impact rule, and concluded that despite the traditional impact rule, there is n o me ritorious reason to refuse to extend recovery for em otional distress in an appropria te and com

pellingsituation suc h as the onein that case. Id. While Lee did not discuss thepecuniar

y loss r ule and involved a parent and child, rather t han close friends, it is oth erwise similar to this case an d its hol ding is i nstructi ve. There is evidence i n this case showing that both McDade and Wood sustained a direct physical impact and physical injur ies through the negligence of another, and that7

Wood died as a result of such negligence. Thus, as in Lee , an d co nt rar y to th e cl aims of the dissent, this is the sort of compe lling situation in whic h allowing McDadeto
recover for seri ous em otional distr ess from witnessin g his close f

rie nd’ s sufferi

ng and death without regard to whether the emotional trauma arises out of a physical injury is app ropriate

since it restricts recover y to one who was d

irectly affect ed by th e negligent act o r omis sio n. Ac cor din gly, because there exist genuine issues of material fact as to whether McDade i s entitled to emot ional distress dam ages under the pecuni ary

loss rule, the trial

court cor

rectly denied thedefense m

otion for pa

rtia l summary judgment.A14A0147. OLIV ER et al . MCDA DE et al. BO-008

B OGGS , Ju dge , con cur rin g sp ecia lly an d in judg ment o nly. The trial cour

t in this ca se corre ctly denied the de fenda nts’ m otion for summary judgm ent, but I do not

agree w ith all that

is said in the m ajority ’s opinion

and Judge McFad den’s special concurrence. I theref ore concur

spe cial ly an d in judg ment o nly. I agree with the maj ority’s conclusion that “neither the c o m plaint nor McDade ’s depositio n testi mony set out any

facts showing that a po rtion of his emotional distress arises sol ely f rom w itnessing the

injurie s to his friend or

could be apportioned to hi s n on ph ysi cal in jur ies as o pp os ed t o h is ph ysi cal in jur ies .” I n my view, the indivisi

bility of McDade ’s emotional injury resulting from a single physical2

impact in wh ich he wa s al so p hys ical ly i njured pl aces this c ase within the scope of recovery all owed by the im

pact rule. See Lee v. State Farm Mut. Ins . Co. , 272 Ga. 583, 588 (III) (533 SE2d 82) (2000). I also agre e with the

analy sis in Judge A

ndrews’ di ssent re garding the pecuniary loss rule a

nd its inappli cability

to the fac ts presently bef ore us.A14A0147. OLIVER et al . v. McD ADE e t al.

ANDRE WS , Presi ding Judge, dissenting. For over one hundred year s, t hrough t he applic ation of t he “impact rule,” Georg ia’s courts hav e reje cted stea dfastly attem pts to awa

rd dam ages for t

he negligent infliction of emotional distress unaccompanied by physical injury . See OBGYN Assoc. of Albany

v. Littl eton , 259 Ga. 663, 666 (2) (B) (386 SE2d 146) (1989) (“ Littleton II

”); Chapman v. Weste rn Union Te legraph Co. , 88 Ga. 763 ( 15 SE 901) (1892); Owens v. Gateway Management Co. , 227 Ga. App. 815, 816 (490 SE 2d 501) (1997). Today ’s deci sion, under the g uise of the

“pec uniary loss” ruleas applied

in Natio nwideMut. F

ire Ins. Co. v. Lam , 248 Ga. App. 134 (546 SE2d 283) (2001) ,1 Furthermore, I a gree w ith the pa rties’ observation

that the plaintiff cannot recover, pursuant to the impact rule, da

mages f or any emotiona l distress resulting from hiswitnessing the death of his friend and its aftermath. See, e.g., Lee v. State F arm Mut. Ins. Co. , 272 Ga. 5 83 (533 SE2 d 82) (200 0); Littleton II , supra, 259 Ga. at 666-667. 2 eviscerates the im

pact rule , perm

its litigant s to routinely obtain dam

ages for emotional distress without physical injury , and, by doing so, imperm

issibly supplies
a rem edy w

here none existed bef

ore. Be cause I c onclude th at Lam was wr ongly decidedand should be

overrule d, and bec ause I bel ieve that w e sho uld therefore
reverse the trial court’s order denying the defendants’ m otion for partial summar

y judgm ent based up on the pecun iary loss rule, I respec tfully dissent. 1 1. At the co re of toda

y’s decision is the m ajorit y’s and J udge McFad den’s special concurrence’s reliance upon, and unprecedented and unauthorized expansion of, the pecuni ary l oss rule. The rule , artic ulated in Kuhr Bros. v. Spahos , 89 Ga. App. 885, 890 (81 SE2d 491) (1954), provides that In cases where mer

e negligence is relied on, before damages for m ental pain and suffe ring are allowabl e, there must also be an actual physical injury to the pers on, or a pecuniar y loss resulti

ng from an inj

ury to the person which is not

physical; such an inj ury to a person’ s reputati on, or the mental pain and suffering m ust cause a physical injury to the person
. (Em phasis i n original. ) See al so Littleton II , supra, 259 Ga. a

t 667 (2) (B ); Phillip

s
v. Marquis at Mt. Zion-Morrow, LLC , 305 Ga. App. 74, 77 (699 SE2d 58) (20 10);2 In this reg ard, Barrow v. Ga. Lightweig ht Aggregate

Co. , 103 Ga. App. 704, 709 (120 SE2d 636) (1961) is not applic able. In Barrow , this Cour t perm itted a landowner

to seek dam ages for emotiona

l distress r

esulting fr

om blastingoperations on a neighbor ing pro per ty. I d. T he landown er claim ed to suffer dam age to his residence and “g reat and grievous discom fort, a

nnoyanc e, and an

xiety. ” Id. at

708. This Court c oncluded th at the blastingoperations constitute d a trespa ss, althoug h there is no menti on of pecunia ry loss
. Id. In the more than 50 year s since it w as de cided, Barrow has been c ited for t

his proposition

by Georgia courts twice. See Littleton II , supra, 259 Ga. at 666 (2) (B); Lam , supra, 248 Ga. App. at

137. Littleton II

overrule d Barrow

to the exte ntthat it “

may stand for the proposition that a plaintiff who has suffered a trespass may recover for emotional distress ,” but agree d that it could support da mage s for “mental i njury flowin g fr om a trespass.” Littleton II

, supra, 259 Ga. at 667 (2) (B). I n essence, then, this Court held that one cannot re cover dam

ages for emotiona

l distress b y virt

ue of the trespass itself; it mus t be accompanied

by inj ury to the person. In fact, Littleton II reiterated this idea, holding that a “pecuniary loss must o ccur as a resu lt of a tort involvi ng an injur y to the person .” Littleton II

, supra, 259 Ga. a

t 667 (2) (B ). See

also Owens , supra, 227 Ga. A pp. at 816. 3 Owens , supra, 227 Ga. App. at 815. Stated differently , “for a pecuniar y loss to support
a claim for dam ages for emotiona

l distress, the pecuni ary l oss mus t occur as a result of a tort involv ing an injury t o the person even th ough this i njury may not be physical.” Littleton II

, supra, 259 Ga. a

t 667 (2) (B ). (Em

ph asis added). A key limit ation on the pecuniar

y loss r ule is that where there is an injury to property alone,

“ there can be no recovery for m ental suff

ering.”Id. See

also Kuhr Bros. , supra, 8 9 Ga. A pp. at 890. 2 This case is controlledby our decisi on in Owens , 227 Ga. App. at 815. In Owens , two a rmed g unmen forc ed t hei r way into t he plaintif f’s apa rtment and held4

her captive for 15 m

inutes. 227 Ga. App. at

815. The plaintiff sued the la

ndlord for negligently

failing to maint ainadequatesecurity and claim

ed em otional distr

ess. Id. at816. The

trial cour t granted t he defenda

nts’ motion

for sum mary judgm ent, and

the plaintiff appealed. We h el d that the pe cuniary loss rule di d not apply

because “

the only pecuniary

loss . . . is that incurred due to me dical bills and lost time from w ork [the plaintiff] alleg edly in curred be cause of emotiona l distress f

ollowing the incident .” Id. at 816. As a result, we found that the p ec uniary loss the plaintiff claimed “is not of the same

type as that

referr ed to in [ Littleton II

] beca use it is itself

a form of em otional distre ss damage

as o pp os ed t o p ecu ni ary l os s” r esu lt in g fr om a tor t “involving an injury to the person.” Id. at 816. (Emphasis added). Owen s concluded that “ [t]o hol d otherwi se would be to allow bo o ts tra pp in g o f an ext reme nature. ” Id. In this case, the same principl es apply . As in Owens , the plainti ff’s c laim for emotional distress, related to events f ollowing the

collision, “is no t of

the same type
as that ref

erred to in [Littleton II

] beca use it is itself a form

of em otional distr

ess damage as opposed to pe cuniary loss” resulting from

a tort “ involving an injury to the person.” Owens , supra, 22 7 Ga. A pp. at 816. In other w ords, theplaintiff cannot show the non-phy sical inj ury tha t he suffered as a r

esult of the

de fen dants’ ne gligence i s3 See OB-G YN Assoc. of Albany v. Little ton , 261 G a. 664 (4 10 SE2d 121) (1991)

(“ Littleton IV

”).
4 Importantly, Owens is binding precedent under our rules. See Rule 33 (a). 5 anything other than

the same em otional distr ess for w hich he see ks to recover. It follows that the pla

intiff m ay seek damages for his emoti onal distre ss, if any, arising from the personal injurie s he sustain ed. 3 Absent any separate tort involving an injury to his pers on, how eve r, he may not se ek dam ages for emotiona l distress f

rom witnessing

the death o f his friend and its aft ermath. Owens rejected the circular reasoning adopted i n Lam and en dors ed by th e majorit y and Ju dge Mc Fadde n’s special concurrence , holdi ng th at i t wo ul d “al lo w bo ot st rap pi ng of a n ex tre me nature.” Owens , supra, 227 Ga. A pp. at 816. 2. In permitting a plaintiff to seek damages for negligently ca used emotional distress in

the absenc e of physical i njury, Lam failed to address the prior holding in Owens
. 4 Lam and her husband were involved in an automobile accident in which her vehicle was damaged. Lam , supra, 248 Ga. App. at 135. Although Lam’s husband was injured, Lam

did not sustai

n any ph ysical injury ; however , she all eged that t h e accident aggravated

a preexis ting mental illnes s, the treatm ent for w hich resulted in medic al expense s. Id. A fter cit ing Lee and the impact rule, this Court focused upo n5 Correctly state d, Littleton II held that “for a pecuniary loss to support a claim

for damages for em

otional distr

ess, the p ecuniary

loss mu st occur a s a result of a tort involving an injury to the person even though this injury may not be physica l.” 259 Ga . at 667 (2 ) (B). (Em phasis added). 6 the pec un iar y lo ss rul e fr om Littleton II (see inf ra, p. 3), incor

rectly statin g tha t Littleton II held

that “a plaintiff may recover damages for em otional distress based uponan injury to property that results in pecuniary loss if inj ury to the person is also present.” Id. at 136-1 37. (Emphasis in original ). In fact, Littleton II contains no such holding. 5 The cour

t in Lam con ced ed t hat Lam di d no t su sta in a phys ical inju ry; therefore, to support its conclusion that Lam could recover dam ages for emotional distress un der th e pe cun iar y lo ss rul e, t he c ou rt i mp rop erly cited Littleton II,
e ngr afted an apparent “personal property ” exception onto the rule, and then relied uponthe damage to La

m’ s autom obile, ch aracter izing it as a trespas s, to sides tep the lack of a p erso nal inju ry. (a) A s a result, Lam was wrongly decided for three re asons: (1) La m imp rope rly

cited the holding of Littleton II as noted ab ove and shif

ted its foc us to whether property dama

ge was sustained ; ( 2) it abandoned the traditional no tion of what is encom passed by the phrase

“pecuniary

loss result

ing from an injury to t he perso n which is not physi cal; such an injury to a person’s reputation;” Littleton II ,7

supra, 259 Ga. a

t 666 (2) (B ) (“ An injur

y to the reputation would be such an injury.”); Phillips , supra, 30 5 Ga. A pp. at 77; Owens , supra, 227 Ga. A pp. at 815; and (3) i t wrongly applied the pecuniary loss rule. The first of these has alre ady been discussed. (b) Second, although the

prim ary e xampl e of an inj ury to the person that is not physical has been da

mage to reputat

ion, this is not an exhaustive listing. Additional possibilities are sugge sted in Hubbard v. Ruff , 97 Ga. App. 251, 253 (103 SE2d 134) (1958) and Hutcherson v. Durden , 113 Ga. 987, 989-990 (39 SE 495) (1901). In Hubbard , this Court construed “personal tort” as used in the inter spousal im

munity statute as “o ne involving or consisting in

an injur y to the person or to the reputation
or feelings, as distinguished from an injury or damage to real o r personal property.” 97 G a. App. at 253. Similarly, Hutcherso n determ ined that “ injurie s done to the person” included “ all action able injuries to the individual himself” and cited physical and bod ily i njur y, injury

to the reputatio n, false

impr isonment, m alicious a

rrest, and injury to one’s health, in contrast to injury done to theperso n’s property. 113 Ga. at 990. Yet Lam focused upon damage to Lam ’s vehicle as a mea ns for re covery

for emotional dis tres s in the abs enc e of p hysi cal i njur y. Acco rdi ngl y, in view of Littleton II ’s requirem

ent that a “pec uniary

loss mu s t occur as a result of a tort involv ing an injury to the perso n even though t his injury may no t be phy sic al” (i. e., re putation,8

false impr

isonment, etc. ) and the c ompani on principle that emotional distr

ess damages may

not be awa

rded for l oss to prop er ty alone, Lam incorrec tly bas ed its decision on the damage to Lam ’s vehicle. The impact of Lam ’s fi xat ion on p rop erty d amage is h igh lig hte d in its pro gen y. See Grizzle v . Norswort

hy , 292 Ga. App. 303, 306 (664 SE 2d 296) (2008) ; Shores v. Modern Transp. S vcs., 262 Ga. A pp. 293, 29 5 (1) (585 S E 2d 664) (2003) . Both Grizzle and Shores involved actions for emotional distress by train engineers following collisions with vehic les. In Grizzle , the cour t cited the pecuniar y loss rule mentioned

in La m (“ba sed upon an in jury to propert

y,” as opposed to “per son” in Littleton II

) and conc luded that, because t he plaintiff

had no pers onal interest in the tra in o r any other property, he could not recover lost income and medical e xpenses underthe pecun iary loss rule. 2 92 Ga. Ap p. at 306 (2). L ikewise, in Shores , in addition to finding no physical injury, the court noted that the plaintiff

“failed to show
an ‘inju ry to p roperty ’ resulting in pecuniary loss.” 262 Ga. App. at295 (1). A s this Court no ted in Jordan, “[a ]lthough p ecuniary loss ma y also serve as t

he basis to
recover for em otional distr

ess, the loss m

ust result from an injur y to the person, n ot to property .” 230 Ga . App. a t 735. See also Littleton II

, supra, 259 Ga. at 667 (2) (B). What is relevant

is whethe r the plain

tiff suff ered a pec un iar y lo ss res ul ti ng fro m “a6 Judge McFadden’s sp ecial con currenc e’s ar gument that Lam should be followed as controlling authority because “the Suprem e Court previously declined to review [it] on certiora ri” is unsupportable. See Ezor v. Thom pson , 241 Ga. App. 275, 277 (1) (526 SE2d 609) (1999) (“The denial of a writ of c ertiorar

i shall not be taken as an adjudication that the decision or judgment of the Court of Appeals is correct.” ). 9 tort involving an injury

to the pers on,” eith er phy sical or of the sort contemplated

by Littleton II

. See Ha rr is v. W

all Tire C o. , 197 Ga. App. 818 ( 399 SE2d 580 ) (1990) (recov ery under pecuniary loss rule not permitted wher e plaintiff suffered property damage and alleged emotional distress, but no personal injury). (c) Third, Lam wrongly

applied the

pecuni ary loss rule by

finding tha

t the medical bills and l o st wages incurred by Lam supplied the pecuniary loss for her cla im. See Owens , supra, 227 Ga. A pp. at 816. Just as in Owens , “theonly pecuniary loss [in Lam ] is that incurred due to medica l bills and lo st time fro m wor k [L am] allegedly incurred because o f em otional distr ess follow ing the incide nt” and wa s not the result of a separate tort involving an injury to Lam . 227 Ga. App. at 816. O n this point, Owens is indistinguishable. However, the Lam court essentially bootstrapped Lam’s damages for em

otional distress on

to her claim fo r propert

y dam age to provi de
a recover y in the absenc e of a sep arate “tor t involving an

injury to the pers on.” For the reasons statedabove, th is conclusio n was er roneous and

should be ove rruled. 6 To the extent Hall County

Memorial Park v. Baker , 145 Ga. App. 296 ( 243 SE2d 689)10

(1978) relies upo n simil ar lo gic to awar d damages for em otional distr

ess in the absence of

personal injury , it too should be overr uled. 3. Fin all y, thi s Co urt doe s no t ha ve t he a uth ori ty, were it so inclined , to expan d the remedies available t o plaintiffs under our law. See Shores , supra, 262 Ga. A pp. at296 (2) (declining to relax the impac t rule); McCunney v. Clary , 259 Ga. App. 260, 261-263 (2) (576 SE2d 635) (2003). Only the Suprem e Co urt of Georg ia or the General Assembly may do that. See Lee , 272 Ga. at 588; Shores , supra, 262 Ga. A pp. at296 (2); McCunney , supra, 259 Ga. App. at 261-263 (2). In fac t, the Supreme Court has recogniz ed a single

exception to the impact rule. See Lee , supra, 272 Ga. a t 587. Presented with the opport unit y to reject the im pact rule, our Supreme Court specifically reaffirm

ed it, finding that the benefits o f

an impac t rule are plain in th at it provid es a bright er line of liability and a cle ar rela

tionship between the plaintiff's being a vic tim of the breach of duty and compensability to the plaintiff.
Lee , supra, 27 2 Ga. a

t 587 (II) . Indeed , the court c ould not have been more clear w

hen itstated that “we decline to adopt any rule whic h might , in eff

ect, create a se

parate tort allowing r ecovery of damages fo r the negli gent infl iction o f emotional di stress.” Id. at 588 (II I). No decision since has fu rther exp anded this e xception, and it therefore11

appears th e pa ren t/ chi ld exc ept io n, a pp li cab le o nl y whe n b ot h ar e in jur ed i n t he s ame accident and the child dies from her injurie s, remains the lone exception to the impact rule in Georgia. See Shores , supra, 262 Ga. A pp. at 296 (2) (dec lining to relax t he impac t rule); McCunney , supra, 259 Ga. App. at 261-263 (2). Acco rdi ngl y, under Georg ia law, an injured parent can recover for em otional distress from

witnessin g the injur

y and de ath of

her child i

nvolved in

the same event. See Lee , 272 Ga. at 588. Co nversely , a parent cannot recover for em otional distr

ess from the dea th o f a ch ild dur ing del ive ry. See Littleton IV , supra, 261 Ga. at

664. Nor
can a parent recover for emotional distress f rom w itnessing the

non-fatal injury

of his spouse and

his children involved in the same event. See McCunney , supra, 259 Ga. App. at 261-26 3 (2). Similarly, a relative cannot recover for em otional distr

ess from witnessing

the non-fa

tal injur y of a relative involved in the same event. See Bennett , supra, 3 12 Ga. A

pp. at 458 ( 3). It is clear th at the plaintiff’ s claim is not inc lude d within the narrow Lee exception, and we ar e no t au tho rize d to crea te s uch a remed y,
as was done in Lam
. See Lee , 272 Ga. at 588; Shores , supra, 262 Ga. App. at 296 (2); McCunney , supra, 259 Ga. App. at 261-263 (2). In closing, t

he ruling issued by

the m ajority

represe nts a drast

ic expansio n of the pecuniar

y loss r ule above a

nd beyon d a ny prio r lim itation by the courts of this7 See Southern Star L ightning Rod Co. v. Duv

all , 64 Ga. 2 63, 269 (18 79) (Ble ckl ey, J.). 12 state - so m

uch so, in fact, that the im pact of the

decision isto render

mea ningless the impact rule. Indeed, of what use is the im pactrule if it

can be routinely circumvented underthe majority ’s enlargement of the pecuniary loss rule? As our Supreme Court noted in Lee , “it would be im prudent to abandon over a hundre d year s o f Georgi a precede nt” to sacrifice the impact rule. 272 Ga. at 588. Yet that is precisely w hat has bee n ac compl ish ed t oda y. In view of the fo regoing, I do not find that the plainti ff is enti tled to rec over for emotional distress f

rom w itnessing the

death of his friend and its aftermath under any existingtheory of Georgia law, specifically including the pecuniary loss rule. I further believe that we should overrule Lam inasm uch a s it is in confli ct with Owens , a controlling

precede ntof this Cour

t, and is inconsistent

with Littleton II

, Lee , and our long-standing adherenc e to the im pact rule . We s hould not

further melt down the law in this area. 7 As a result, the judgment of the tr ial courtshoul d be rever sed and remanded with dire ction to ent er parti al sum mary judgm ent in favo r

of the defendant s on the issue of recovery under the pecuniary loss rule.