Lee v. State Farm Mutual Automobile Insurance

Judge Harold R. Banke.

An unknown hit-and-run motorist caused an automobile accident in which Bridget Lee and her daughter received significant physical injuries. Lee witnessed her daughter’s suffering, which eventually resulted in the daughter’s death an hour later. State Farm Mutual Automobile Insurance Company and Allstate Insurance Company provided Lee and her husband with uninsured motorist protection and paid out the policy limits on the daughter’s wrongful death claim. Lee brought suit to recover for her own physical injuries and for the emotional distress she experienced from witnessing her daughter’s sufferings and death. Her husband jointly sued for loss of consortium. State Farm intervened on its own behalf, and Allstate has defended in the “John Doe” name of the unknown motorist.

The court entered summary judgment in favor of defendants on Lee’s claim for emotional distress. Claiming error, Lee argues that Georgia law allows a mother to recover for emotional distress from witnessing her child’s injuries and death where the mother is also physically impacted and injured by the same tortious conduct.

1. Based on Georgia’s impact rule,¹ OB-GYN Assoc. of Albany v. Littleton (“Littleton IV”)² held such damages are not actionable. Littleton alleged that though medically indicated by signs of fetal distress, the doctor failed to perform a caesarean section surgical delivery of her child, with the resulting prolonged vaginal delivery causing physical injury to both her and the delivered child, who died two days later.³ Thus, the same force or impact caused the injuries to the child and mother. She sought to recover for the mental distress associated with witnessing her child’s injuries and subsequent death.

Quoting a Court of Appeals decision,⁴ the Supreme Court stated:

We emphasize that any potential award of damages to Mrs. Littleton in the malpractice claim for her injuries is limited to compensation for any physical injury she suffered as a result of the alleged negligence, and any mental suffering or emotional distress she incurred as a consequence of her physical injuries. Any mental suffering or emotional distress she suffered as a result of injuries to her child is not compensable in this claim.⁵

Subsequent decisions have reiterated that even though the mother herself may have experienced physical impact and harm from defendant’s tortious conduct, she may not recover for mental distress arising from witnessing her child’s sufferings caused by the same conduct.⁶ Recovery for emotional distress must arise out of her own physical injuries, and not out of separate physical injuries to the child.⁷

Thomas v. Carter⁸ focused on this distinction. The court allowed a mother to recover for emotional distress associated with the death of her fetus because:

The injury to both the mother and the fetus was caused by the direct force to the mother in the automobile collision which resulted in the in útero death of the fetus. The trauma to the placenta is an injury to the mother, not to the child. It was this injury to the mother, and not any separate injury to the fetus, that caused the death of the fetus. Thus, unlike Littleton, the death of the child was the direct result of an injury to the mother.

In Littleton, the Supreme Court recognized that a plaintiff could bring an action for negligence resulting in injuries to her person. This claim may include a claim for compensation for any emotional distress which is a consequential damage resulting from those injuries. In this case, any emotional distress suffered by [the mother] due to the death of her unborn child was a consequential damage resulting directly from injuries to [the mother] herself.⁹

Relying on Littleton IV, Thomas acknowledged that “where the physical injuries to the mother are separate from the injuries to the child, it is appropriate that the mother not be able to recover for her emotional distress resulting from injuries to the child.”¹⁰ Thomas explained that unless the particular injuries to the mother are themselves the proximate cause of the child’s death (as where a child dies in útero), the mother may not recover for her mental distress caused by witnessing the child’s suffering.

Lee and the dissent cite Southern R. Co. v. Jackson¹¹ as contrary authority. A close reading of Jackson reveals that it is consistent with the recent authorities cited above. Jackson held in Division 1 that a mother who is physically injured by a negligently run train and whose child is also injured “has a right of action for the wrong to herself.”¹² In Division 2 Jackson held that if the mother were not physically injured and her child was, she could not seek to recover for the ■ emotional distress arising from the child’s injuries.¹³ Jackson does not state that physical injuries to the mother would allow her to recover for the mental distress associated with seeing her child hurt.¹⁴

The dissent’s reliance on a “common force” doctrine is misguided, as no Georgia court decision or statute has referred to such a doctrine or used such a phrase. At most, a form of the concept was briefly referenced in Thomas,¹⁵ but Thomas then explained it was referring to situations where the mother’s injuries themselves proximately caused the child’s injuries.¹⁶ In view of Littleton TV’s clear guidance on this matter, we are not at liberty to create new causes of action or to overrule Supreme Court precedent.

Thus, the court did not err in entering summary judgment on Lee’s claim for mental distress arising from witnessing her daughter’s injuries and death.

2. The ruling in Division 1 moots the question of whether State Farm’s uninsured motorist policy would cover this claim as a “bodily injury’ to Lee.

Judgment affirmed.

Johnson, C. J., McMurray, P. J., and Andrews, J., concur. Blackburn, P. J, Ruffin and Barnes, JJ, dissent.

1 See OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 665- 666 (2) (A) (386 SE2d 146) (1989) (“Littleton II”) (the “impact rule” requires actual bodily contact with plaintiff resulting in physical injury to plaintiff for a claim for emotional distress to lie).

2 261 Ga. 664 (410 SE2d 121) (1991).

3 Littleton v. OB-GYN Assoc. of Albany, P.C., 199 Ga. App. 44, 45 (403 SE2d 837) (1991) (“Littleton III").

4 Id. at 46, fn. 1.

5 (Citation and punctuation omitted.) Littleton IV, supra, 261 Ga. at 664.

6 DeKalb County v. Wideman, 262 Ga. 210, 211 (416 SE2d 498) (1992) (“the mother could not recover for her mental distress over the suffering and death of the baby, although she could claim damages for emotional distress resulting from either negligent conduct causing a personal injury to her, or malicious or wilfully tortious conduct directed against her”) (citation and footnote omitted); Goins v. Tucker, 227 Ga. App. 524, 526 (2) (489 SE2d 857) (1997) (“[a]ny mental suffering or emotional distress plaintiff suffered as a result of injuries to her child is not compensable in this claim”) (citation and punctuation omitted).

7 Littleton IV, supra, 261 Ga. at 664; Littleton II, supra, 259 Ga. at 663-664 (the mother’s claim “may include a claim for compensation for any emotional distress which is a consequential damage resulting from [physical] injuries” to her own person).

8 234 Ga. App. 384, 387-388 (506 SE2d 377) (1998).

9 (Citations and punctuation omitted; emphasis supplied.) Id.

10 Id. at 387.

11 146 Ga. 243 (91 SE 28) (1916).

12 Id. at 243 (1).

13 Id. at 243 (2).

14 Accord Strickland v. Hodges, 134 Ga. App. 909, 910 (216 SE2d 706) (1975): in [ Jackson] 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.”

15 234 Ga. App. at 386-387.

16 Id. at 387.