Emotional Damages: Georgia Supreme Court to Hear Challenge to Impact Rule

In January, Georgia’s highest court will consider whether a man who witnessed his friend’s death in an auto accident can recover for emotional suffering stemming from the accident.  Georgia is one of a handful of states still adhering to the impact rule, which requires that someone claiming emotional damages resulting from negligence can recover only if there is evidence of physical injury.  The other states are Florida, Indiana, Kansas, and Nevada.  A decision by the Kentucky Supreme Court eliminated the impact rule in that state in 2012.

At issue in the Georgia case, Osborne v. Keeney, is whether the plaintiff can recover for emotional pain suffered as a result of both his own physical injuries and also from being splattered with his friend’s blood and tissue.  Georgia’s Court of Appeals ruled that he had suffered a monetary loss, specifically the cost associated with seeking medical treatment for depression, and that he could recover for emotional distress stemming from the accident.

Describing the Plaintiff’s episode of depression as an “identifiable nonphysical injur[y]” and the cost of treatment associated with that depression as a “pecuniary loss,” the Court cited these as reasons the Plaintiff should be able to seek damages for emotional distress.  The Court stated that “an identifiable injury” was an objective requirement and, as such, would safeguard against subjective emotional damages being “invented out of whole cloth.”

Sources

1.       “Judges Fracture on Emotional Distress Issue,” Daily Report, 15 Aug. 2014. Web. 1 Dec. 2014

2.       Palmer, A., “High Court Takes Cases on Apportionment and Damages for Witness of Gory Death,” Daily Report, 9 Oct. 2014. Web. 1 Dec. 2014

3.       Osborne v. Keeney, -S.W.3d-, 2012 WL 6634126 (Ky. Dec. 20, 2012).