Eley v. Fedee

362 Ga.App. 618

869 S.E.2d 566

ELEY et al.

v.FEDEE.

A21A1513

Court of Appeals of Georgia.

February 11, 2022

Andrew Howard Agatston, Marietta; Williamson & York, John Howell Williamson, for Appellant.

Savell & Williams, Matthew David Schreck ; Law Offices of Andrews & Manganiello, Catalina Alvarez, for Appellee.

The Summerville Firm, J. Darren Summerville, Meredith C. Kincaid, amici curiae.

Brown, Judge.

Maretris Eley ("the mother"), in both her individual capacity and as the natural parent and legal guardian of her twin daughters (Nadia and Naomi), filed a negligence action against Felicia Fedee following an automobile collision with Fedee. The mother appeals from the trial court's grant of partial summary judgment to Fedee on her daughters’ claims for emotional distress damages. She contends that summary judgment was inappropriate because (1) the impact rule does not apply to the negligence claim asserted for her daughters; (2) material issues of fact exist as to whether her daughters suffered a physical injury in the accident; (3) the pecuniary loss rule should apply to allow a recovery for monetary expenses incurred on her daughters’ behalf as a result of the accident; and (4) treating minor and adult plaintiffs differently violates the Equal Protection Clauses of the United States and Georgia Constitutions. For the reasons set forth below, we affirm.¹

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. See Home Builders Assn. of Savannah v. Chatham County , 276 Ga. 243, 245 (1), 577 S.E.2d 564 (2003). So viewed, the record shows that Fedee admits that she was at fault for an accident in which she pulled her car in front of the car driven by the mother.² It is undisputed that the twins were passengers in the vehicle at the time of the October 28, 2017 accident. The "driver's side front" of the mother's car struck the "driver's side rear" of Fedee's car. Fedee testified that the collision felt "hard" to her and felt like a seven on a scale of one ("light tap") to ten ("just demolished"). Fedee's speed was approximately 5-10 mph when she was struck by the mother's car. There is no evidence of the mother's speed before the impact. After the impact, Fedee "blacked out for a little bit." When she awoke, her car was facing oncoming traffic, and she drove across multiple lanes of traffic to a nearby convenience store with bystander assistance. Fedee left the convenience store in an ambulance; her back was injured in the accident in a way that cannot be determined from the record before us. A photograph of Fedee's car after the accident shows the rear bumper hanging off the back; the trunk of the car appears to be otherwise intact. A photograph of the mother's car after the accident shows damage to the front driver's side and the hood is buckled. There does not appear to be any visible fire damage.

In her deposition, the mother testified unequivocally that neither twin suffered "any physical injury as a result of the accident." She also stated that they did not have "any cuts, scrapes, bruises, [or] anything like that." In her response to an interrogatory asking for a detailed statement of all injuries, the mother wrote that the twins, who were nine years old at the time of the accident,

were traumatized by the collision. They were each diagnosed with Acute Stress Disorder and anxiety, and prescribed anti-anxiety medications. They continue to experience anxiety as passengers, as well as great fear for their mother's safety when she is driving or riding in a car.

The mother described her own injuries as follows:

a burn and bruising to her left arm, dizziness, vertigo and nausea, pain in the right side of her neck, right side of her lower back shooting down into her right leg, sciatica, and ear pain. She experienced anxiousness as a result of the incident. She continues to experience right side, lower lumbar pain.

Over two years after the accident, the mother's medical expenses totaled $2,712 and the twins’ therapy expenses totaled $400. The mother made no claim for lost wages as a result of the accident.

In July 2018, approximately nine months after the accident, the twins saw Dr. Hopkins-Naylor, "a doctor of psychology," on two occasions approximately two weeks apart. Her treatment notes contain no indication of any physical manifestation of injury from the accident. There is no indication that the twins suffered from rapid heart rate, chest pain, stomach pain, or headaches. Both girls acknowledged pretending to be physically ill to avoid riding the school bus. The treatment notes also indicate that the mother stated: "car caught on fire"; "girls in back seat"; and "mom went to ER - 3rd days [sic]." Nadia stated that she is "sad" the car was "ruined" and that it "was smoking and the air bag came out" as a result of the accident. Naomi relayed that "smoke was in the car" and she "had to get out."

Fedee filed a motion for partial summary judgment, asserting that the impact rule precluded a negligence claim for the girls because the record contains no evidence that they were physically injured as a result of the impact.³ In an affidavit submitted in opposition to Fedee's motion for partial summary judgment,⁴ Dr. Hopkins-Naylor opined that both girls

presented with observable symptoms that included being on edge, nervousness, and worry. Each of these observable symptoms can create stress and discomfort on the physical condition of a person. For [the twins], that was the case. Both ... described the collision and aftermath of the collision in terms that can be categorized as acute stress disorder.

The DSM 5 sets the diagnostic criteria for acute stress disorder. Symptoms can include intrusive thoughts, negative mood, avoidance, and arousal symptoms. Both children met the arousal symptoms with their hypervigilant behavior, sleep disturbance, and avoidance, such as not going to school and not getting on the bus. Their intrusive thought symptoms comprised of distressing memories and flashbacks, which included thinking about the collision at school and crying about it. These symptoms began immediately after the collision, and they were both still talking about the impact when they presented to me. It created an impairment to their going to school by riding the bus as they had done in the past and their mother had to drive them to school, where before she did not have to.

It is my opinion based upon a reasonable therapeutic probability that both ... suffered physical symptoms of pain and somatic pain as a result of the collision, as well as emotional harm.

In addition to providing her specific opinion with regard to the twins, she averred:

When discussing their traumas, children and adults can experience rapid escalation or changes in mood; crying, anger, anxiety, or irritability; fear; hopelessness; and other psychological changes that can directly create a painful response in their bodies physiologically. One often hears of a bereaved person after the death of their loved one state that their chest hurts. Symptoms that indicate such physical-pain-inducing sensations include rapid heart rate; somatic pain such as stomach pain; chest pain, and headaches.

Nowhere in her affidavit does she state the specific physical pain suffered by the twins at any time after the accident.

With regard to her professional background, Dr. Hopkins-Naylor stated that she worked for the Georgia Center for Child Advocacy for five years providing "trauma-informed psychotherapy to child victims of sexual abuse," followed by ten years of "private practice" seeing children and adults "in an individual as well as a family setting." Her affidavit provides no information about her education and training other than asserting that she holds a doctorate in psychology.

The trial court granted the partial summary judgment motion in a detailed five-page order. It did so based upon its conclusion that the impact rule precluded a recovery for the girls, as well as nonbinding precedent from this Court refusing to apply the pecuniary loss rule to claims by minors. See Shamblin v. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter Day Saints , 352 Ga. App. 870, 878-879 (4), 836 S.E.2d 171 (2019) (physical precedent only).

1. The mother contends that the impact rule does not apply in this case because it applies only to "negligent infliction of emotional distress" cases rather than "straightforward claims of negligence." We disagree.

As the Supreme Court of Georgia has explained, the impact rule

has a long history with its origins in Chapman v. Western Union Tel. Co. , 88 Ga. 763, 15 S.E. 901 (1892), a case involving a plaintiff's unsuccessful attempt to recover damages from a telegraph company for mental pain and suffering resulting from the company's alleged failure to timely deliver a message to the plaintiff informing him of his brother's desperate illness. The Chapman court observed, [that so] far as mental suffering originating in physical injury is concerned, it is rightly treated as undistinguishable from the physical pain. On ultimate analysis, all consciousness of pain is a mental experience, and it is only by reference back to its source that one kind is distinguished as mental and another as physical. So in cases of physical injury, the mental suffering is taken into view. But according to good authorities, where it is distinct and separate from the physical injury, it cannot be considered.

Lee v. State Farm Mut. Ins. Co. , 272 Ga. 583, 584-585 (I), 533 S.E.2d 82 (2000). It has long been established that the impact rule applies to claims "concerning negligent conduct[.]" Id. at 584 (I), 533 S.E.2d 82 ; Ryckeley v. Callaway , 261 Ga. 828, 412 S.E.2d 826 (1992) ; Hamilton v. Powell, Goldstein, Frazer and Murphy , 252 Ga....