OB-GYN ASSOCIATES OF ALBANY et al. v. LITTLETON et al., 259 Ga. 663, 386 S.E.2.d 146

Status: DECIDED

Docket Number: S89G0538

Parts: CLARKE, Presiding Justice.

Linked as:

Summary

Certiorari to the Court of Appeals of Georgia -- 192 Ga. App. 634., Judgment reversed and remanded. All the Justices concur, except Smith, J., who concurs specially.

Summary

Certiorari to the Court of Appeals of Georgia -- 192 Ga. App. 634., Judgment reversed and remanded. All the Justices concur, except Smith, J., who concurs specially.

Text

Watson, Spence, Low & Chambless, G. Stuart Watson, Dawn G. Benson, for appellants.

Plaintiffs/appellees Littleton sued appellants for the allegedly negligent delivery of their infant daughter which resulted in the baby's death two days after delivery. They sued in four counts: Count 1 was for the wrongful death of the daughter under OCGA 19-7-1 (c) and 51-4-4; counts 2 and 3 were for loss of her services and for money paid to defendants for services; count 4 was for the mother's mental suffering and emotional distress. The trial court granted summary judgment on count 4, and the Court of Appeals reversed. Littleton v. OB-GYN Assoc., P. C., 192 Ga. App. 634 (385 SE2d 743) (1989). We granted appellants' application for certiorari to resolve two issues: 1) whether Mrs. Littleton will be allowed to recover for emotional and mental distress as well as for the full value of the life of her deceased infant without reduction for any expenses of decedent had she lived; 2) whether the facts of this case create a jury question on the issue of physical injury to the mother so as to give rise to a claim for damages for the resulting emotional distress and mental anguish.

We conclude that recovery for emotional distress is not available in a wrongful death action. We conclude that when Mrs. Littleton entered the delivery room there were two patients: Mrs. Littleton and her unborn child. While Mrs. Littleton is not able to sue for emotional distress as part of her wrongful death action for the death of her daughter, she may bring a claim based on malpractice 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.

1. Recovery for wrongful death in Georgia is limited to the full value of the life without deduction for necessary or personal expenses of decedent and does not include recovery for mental anguish or emotional distress. OCGA 19-7-1; 51-4-4; 51-4-1.

The Court of Appeals found that the claim asserted by Mrs. Littleton here was recognized in Smith v. Overby, 137 Ga. App. 478 (224 SE2d 122) (1976); Marcelli v. Teasley, 51-12-6:

This section does not create a cause of action for injury to peace, feelings or happiness but prescribes the measure of recovery where such a cause of action exists. [Cit.] If "mental pain and suffering" is not accompanied by physical injury or pecuniary loss, recovery is allowed only if the conduct complained of was "malicious, wilful, or wanton." [Cit.] The measure of damages under this section is unique in that the jury is permitted to consider the worldly circumstances of the parties.

We take this opportunity to clarify our rule regarding impact and now hold that the impact which will support a claim for damages for emotional distress must result in a physical injury. Christy Brothers Circus v. Turnage, supra, is overruled.

B. Pecuniary Loss

We turn next to Mrs. Littleton's contention that pecuniary loss which she suffered will support a claim for damages for emotional and mental distress. Interpreting our case of Chapman v. Western Union Telegraph Co., 89 Ga. App. 885, 890 (81 SE2d 491) (1954), overruled on other grounds, extracted the following principle:

In cases where mere negligence is relied on, before damages for mental pain and suffering are allowable, there must also be an actual physical injury to the person, or a pecuniary loss resulting from an injury to the person which is not physical; such an injury to a person's reputation, or the mental pain and suffering must cause a physical injury to the person. [Emphasis supplied.] See Davis v. Hall, 229 Ga. 126 (189 SE2d 421) (1972), apparently adopting the Kuhr Brothers court's construction of Chapman. But see Barrow v. Ga. Lightweight Aggregate Co., 103 Ga. App. 704 (120 SE2d 636) (1961), in which the Court of Appeals found that plaintiff could claim damages for mental suffering resulting from a trespass in the form of dynamite explosions: "We . . . hold that a trespass upon real property imposes liability for damage caused to property and person, including mental and physical injury of the owner and his family." Id. at 709. Insofar as this case stands for the proposition that mental injury flowing from a trespass is compensable, we approve it. However, to the extent that it may stand for the proposition that a plaintiff who has suffered a trespass may recover for emotional distress, we disapprove this case.

We reiterate the rule that for a pecuniary loss to support a claim for damages for emotional distress, the pecuniary loss must occur as a result of a tort involving an injury to the person even though this injury may not be physical. An injury to the reputation would be such an injury.

C. The Zone of Danger or Fear for Another Rules

Finally, Mrs. Littleton claims that she should be allowed to recover damages for emotional distress because she was in the delivery room at the time the infant was delivered, saw and heard the efforts to revive the baby, and later had the baby die in her arms. Georgia does not recognize the so-called "zone of danger" or "fear for another" rule which permits recovery of damages for emotional distress by one (generally a relative) who witnesses injury to another (generally a loved one). In Strickland v. Hodges, 134 Ga. App. 909, 913 (216 SE2d 706) (1975), the Court of Appeals considered the question whether there is a right of action for emotional distress available to parents not present when injuries are inflicted upon their child due to the wilful and wanton negligence of a defendant. The Court of Appeals found no recovery available in Georgia for emotional distress resulting from negligence in the absence of physical injury. Beyond this, the court held in regard to intentional or wanton acts resulting in emotional distress:

To those reasons and that logic [the reasoning and logic of the Court of Appeals of New York in Tobin v. Grossman, 24 NY2d 609 (249 NE2d 419) (1969)] must be added the philosophy inherent in the cited Georgia decisions which require the plaintiff to show that the malefactor's act serving as the basis for the suit must be directed towards the complainant. This is particularly true as to the holding in Southern R. Co. v. Jackson, 252 Ga. 149, 151 (311 SE2d 818) (1984) (Smith, J., dissenting).]

As stated by Page Keeton:

[T]he great majority of courts have now repudiated the requirement of "impact," regarding as sufficient the requirement that the mental distress be certified by some physical injury, illness or other objective physical manifestation. . . .

[A] handful of courts have taken the final step and permitted a general negligence cause of action for the infliction of serious emotional distress, without regard to whether the plaintiff suffered any physical injury or illness as a result. A couple of other recent decisions, over strong dissents, have expressly refused to move this far, opting instead to retain the physical harm requirement. [Cits. omitted.] [ Keeton, supra at 364-65 (5th ed. 1984).]

I agree with the "handful of courts" that allow a cause of action to recover for serious emotional distress without regard to whether the plaintiff suffered any physical injury or physical illness.

William S. Stone, for appellees.