The Atlanta Gleaner.

Holt v. Rickman, No. A23A0612, 2023 WL 3858619 (Ga. Ct. App. June 7, 2023)
#premise liability #Georgia impact rule #when can you start? 
Brenazia Holt brought negligence claims against an apartment complex's owners and manager, seeking damages for emotional distress after she awakened to discover a maintenance worker in her bed. The trial court granted summary judgment to the defendants, ruling that Georgia's impact rule barred Holt's negligence claims because she experienced no physical injuries as a result of the incident. Holt appeals, but for reasons that follow, we affirm.

Viewed favorably to Holt, [1] the record shows that in December 2019, she was staying at her aunt's apartment in Bibb County. The apartment complex was owned by the Stephen and Selyne Rickman Family Trust and operated by Heritage Realty, a limited liability company owned by Stephen Rickman. Joshua Mathews performed maintenance for Heritage and had a master key to the apartments in the complex.

One morning while Holt was sleeping alone in a bedroom, she awakened and found Mathews lying on top of the covers on the bed. Holt pulled the covers up over her head, but Mathews “snatched” them down to the top of her chest, saying he wanted to “see what [she] look[ed] like under there.” Holt told Mathews to “get the f--- out” and pretended to reach for a weapon, at which point Mathews fled. According to Holt, Mathews touched the top of her head while pulling the covers down, but did not otherwise touch her skin and did not see her breasts. Holt testified that she suffered no physical injuries, sought no medical treatment, and missed no work as a result of the incident. However, she occasionally dreams about it and wakes up “thinking somebody [is] in [her] bed.”

Holt recognized Mathews because he had performed work in the apartment the day before the incident. Holt told her aunt what had happened, and her aunt spoke with Rickman, who promised to “handle the situation.” Rickman testified that he hired Mathews in 2016 despite a background check showing that Mathews had two pending child molestation charges. According to Rickman, Mathews explained that he was in the middle of a contentious divorce and that his wife had accused him of molesting one of their children. In 2017, Mathews informed Rickman that he had pled guilty to lesser charges of sexual battery against a child under the age of 16. Rickman continued to employ Mathews as a maintenance worker with access to a master key. After learning about the incident involving Holt, Rickman spoke to her, as well as Mathews, and concluded that there was no proof of Holt's allegations. Approximately one week later, Mathews voluntary resigned his employment.

Holt sued Stephen and Selyne Rickman and Heritage, asserting claims for premises liability and negligent hiring, retention, and supervision against all three defendants. Holt sought damages for “severe emotional distress” and other unspecified injuries. [2] Following discovery, the parties filed cross-motions for summary judgment. The defendants argued that Holt's negligence claims were barred by Georgia's impact rule because she suffered no physical injury as a result of the incident. The trial court granted the defendants’ motion, agreeing that they were entitled to summary judgment because Holt “failed to present evidence of a physical injury caused by the physical impact of Mr. Mathews[.]” [3] Holt appeals.

Georgia's “impact rule” provides that “[i]n a claim concerning negligent conduct, a recovery for emotional distress is allowed only where there is some impact on the plaintiff, and that impact must be a physical injury.” Ryckeley v. Callaway, 261 Ga. 828, 828, 412 S.E.2d 826 (1992). To satisfy the rule, a plaintiff must show that she…

• (1) suffered a physical impact that

• (2) resulted in a physical injury which

• (3) caused her mental suffering or emotional distress. Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 586 (I), 533 S.E.2d 82 (2000).

• A plaintiff's failure to meet any one of the three requirements of the impact rule bars recovery even in cases “in which the circumstances portend a claim of emotional distress.” Id.

In this case, Holt's claims against the defendants all sound in negligence, and she seeks to recover damages for emotional distress. [4] Thus, the impact rule applies here. See Eley v. Fedee, 362 Ga. App. 618 (1), 624, 869 S.E.2d 566 (2022) (“[A] negligence claim seeking only damages for emotional distress is most assuredly subject to the impact rule.”). Holt, however, cannot satisfy the second and third elements of the impact rule because she suffered no physical injury as a result of the incident that forms the basis of her claims.

Holt argues that Mathews's unlawful touching of her person qualifies as a physical injury as a matter of law. [5] She cites Brown v. Super Discount Markets, 223 Ga. App. 174, 477 S.E.2d 839 (1996), in which the plaintiffs sued a retail store and its security employee for assault and battery, among other intentional torts, after the employee detained the plaintiffs for suspected shoplifting. Id. at 174, 477 S.E.2d 839. The trial court granted summary judgment to the defendants, who argued that “any touching was non-confrontational and privileged.” Id. We reversed, holding that factual disputes precluded summary judgment on the assault and battery claims because “any unlawful touching of a person's body, even though no physical injury ensues, violates a personal right and constitutes a physical injury to that person.” Id. at 176, 477 S.E.2d 839. Based on Brown and similar cases, Holt argues that she suffered a physical injury due to Mathews's unlawful touching.

Brown is distinguishable because it did not involve the application of the impact rule in a negligence case. As the defendants point out, the issue in Brown was whether the plaintiffs satisfied the elements of a civil claim for the intentional torts of assault and battery. See id. at 174-176, 477 S.E.2d 839. In this case, if Holt had sued Mathews — the person who allegedly committed intentional torts against her — then the impact rule would not apply. See Hang v. Wages & Sons Funeral Home, 262 Ga. App. 177, 180, 585 S.E.2d 118 (2003) (“where the defendant's conduct is malicious, wilful, or wanton, recovery can be had without the necessity of an impact”) (citation and punctuation omitted; emphasis supplied). But Holt has neither sued Mathews nor alleged that the defendants are vicariously liable for his intentionally tortious conduct. [6] Further, she has presented no evidence that the defendants themselves — as opposed to Mathews — committed any intentional tort or otherwise acted maliciously, wilfully, or wantonly toward her. See Brock v. Atlanta Airlines Terminal Corp., 359 Ga. App. 226, 230-231 (1), 857 S.E.2d 74 (2021) (exception to impact rule for conduct that is “malicious, wilful, or wanton” applies to claims for intentional infliction of emotional distress) (citation and punctuation omitted). Under these circumstances, Holt cannot recover in the absence of physical injury, and the trial court therefore did not err by granting summary judgment to the defendants.

Judgment affirmed.

Gobeil, J., concurs fully; and Doyle, P. J., concurs fully and specially.

Doyle, Presiding Judge, concurring fully and specially.

Because I agree that the present state of the law requires that we affirm the judgment of the trial court, I fully concur. I write separately to note my concern with the arbitrary result of Georgia's “impact rule,” which bars recovery in this case because the damages allegedly flow from psychological harm instead of physical harm, even though the plaintiff was the direct and only victim of the alleged tort.

We should be clear about what the impact rule is and what it is not. The doctrine has its origins in a case published in 1892, which stated, “according to good authorities,” that mental pain cannot be considered compensable “where it is distinct and separate from [a] physical injury.” [7] Based on this, the Supreme Court of Georgia concluded that societal condemnation and sympathy were the best the law could offer: “Perhaps [injured] feelings find as full protection as it is possible to give, in moral law and a responsive public opinion. The civil law is a practical business system, dealing with what is tangible, and does not undertake to redress psychological injuries.” [8] Today's common law should not be constrained by the science and sensibilities of an era more than a century old. [9]

The main purpose of the rule was to address the potential for excessive liability when bystanders are mentally affected by tortious misconduct. [10] It was justified because, “[a]lthough the physical impact rule sometimes produces harsh results, [the rule] provides a brighter line of liability and a clear relationship between the plaintiff's being a victim of the breach of duty and compensability to the plaintiff.” [11]

[A]ny rule seeking to circumscribe a defendant's liability to bystanders must necessarily involve a degree of arbitrariness. However, the benefits of [a bright-line] impact rule are plain .... And a rule is not superior to its alternatives simply because it expands recovery if there is no connection between the nature of the damages and the reason for allowing the additional recovery. [12]

Despite its arbitrariness, this bright line approach was deemed preferable because it advanced three policy goals:

First, there is the fear, that absent [a physical injury resulting from an] impact, there will be a flood of litigation of claims for emotional distress. Second, [there is a] concern for fraudulent claims [for faked injury]. Third, there is the perception that, absent impact, there would be difficulty in proving the causal connection between the defendant's negligent conduct and claimed damages of emotional distress. [13]

None of these concerns apply here. In Holt's own home and bed, Matthews attempted to sexually assault Holt; and she claims he was negligently hired by the defendants despite their actual knowledge that he was on the Georgia Sex Offender Registry. Holt alleges a plausible, straight-line causal chain between hiring a known sex offender and his subsequent alleged sexual misconduct enabled by having unrestricted access to her residence. The class of plaintiffs injured under the present facts is a class of precisely one person, and a jury is fully equipped to evaluate the sincerity and validity of Holt's claims of psychological injury. “In sum, nothing in this case suggests an expanded class of victims, a risk of fraud, or causal remoteness [justifying] the impact rule.” [14]

In light of this, if the victim is not a mere bystander to the alleged tortious conduct, Georgia courts unnecessarily apply the impact rule. [15] The plaintiff in this case has alleged that the defendants’ misconduct caused her a distinct psychological harm that flows directly from their choice to hire Matthews and give him unrestricted access to her residence. Had Holt been physically injured in the attack, her claims would be subject to the ordinary concepts of proof and causation that any tort claimant must meet. Nothing about the facts of this case justifies preventing Holt from the opportunity to meet that burden.

Absent some change made by the Supreme Court of Georgia, this area of the law is due for reform by the legislature.

I am authorized to state that Senior Judge Phipps joins this special concurrence.