“I Could Have Been Killed!” Do I Have a Case?

I have handled hundreds and hundreds of car wreck cases in Georgia. Very often I hear this common theme from prospective clients: “I Could Have Been Killed!” And it is often very true…they could have been killed, but thankfully, they weren’t. So do you have a case when you could have been killed but you weren’t? Or better put, do you have a case when you could have been killed but you weren’t physically harmed at all?

I thought of this because this morning while perusing the headlines I came upon this story about a JetBlue plane that experienced a blown engine and made an emergency landing. Smoke filled the cabin, oxygen masks magically came down, and flight attendants yelled “Brace! Brace! Brace!” as they landed, which fortunately, they did so safely without injury. Watch the video and you will see that many people on board thought they were about to die. And, in fact, they had a long time to think that as the plane, which was over water, had to turn around and go back to California to land. They all could have been killed, but they weren’t.

Therein lies the conundrum.

Georgia has long recognized the tort, or cause of action, of Intentional Infliction of Emotion Distress (IIED). With the emphasis on “intentional, however, that doesn’t exactly fit into our scenario of accidental fright…fear caused by what appears to be an impending disaster, but which disaster is, ultimately, avoided. Also, for the tort of IIED to work, Georgia Courts have typically held there must also be an accompanying physical injury. This is known as the physical injury impact rule as is codified in statute at § 51-12-6. Damages for injury to peace, happiness, or feelings. This physical injury standard would, it is argued, tend to cut down on or eliminate potential fraudulent claims where a claimant simply alleges “Yeah, I was really scared!’ Where the conduct of the defendant is particularly invasive and outrageous, however, such as using video surveillance to watch women employees in the bathroom, Georgia courts have found no such physical injury necessary. Johnson v. Allen, 272 Ga. App. 861 (2005).

Georgia law has also recognized the separate claim of “pre-impact fright,” which occurs, for example, when you are in a car and see another car crossing the double yellow line and heading straight for you head-on. You know that in seconds you are about to be in a horrific crash. Those seconds following that realization are deemed “pre-impact fright.” This is sort of like what all those Jet Blue passengers experienced while breathing oxygen out of masks with a smoke-filled cabin thinking those awful, long minutes back to the airport that “this is it.”

Under Georgia law, the rule is laid out like this:

For pre–impact pain and suffering to be awarded, the jury must have some evidence that the deceased at some point in time was conscious of her imminent death; the jury may infer such consciousness from evidence immediately prior to impact or following her injury. Monk v. Dial, 212 Ga.App. 362, 441 S.E.2d 857 (1994).

Nonetheless, from evidence that the [van] veered shortly before the [car struck the decedent], the jury could infer that [the] decedent was aware of the impending [impact], and from these circumstances could extrapolate the probable mental state of [the] decedent in [the] last moment of consciousness. The fright, shock, and mental suffering experienced by an individual due to wrongful acts of negligence will authorize a recovery where attended with physical injury. Contrary to defendant[‘s] assertion, we find no requirement that the physical injury precede the mental pain and suffering.

(Citations omitted.) Id. at 362(1), 441 S.E.2d 857.

Dep’t of Transp. v. Dupree, 256 Ga. App. 668, 680, 570 S.E.2d 1, 11 (2002).

The same rule applies in workers’ compensation cases, too. In Abernathy v. City of Albany, 269 Ga. 88, 495 S.E.2d 13 ( 1998), the Georgia Supreme Court held that the where the city employee alleged he suffered a psychic injury from seeing corpses rise out of their graves due to severe flooding, and his job was to recover the dead bodies from the flood waters. In scathing dissent, Justice Thompson noted the horrific facts of the case and disagreed that the claimant’s psychological injury should not be recoverable. Justice Thompson recited the facts: Abernathy has been a park maintenance supervisor for the City of Albany since the mid 1980’s. His job primarily involves the planting and maintenance of grass, shrubbery, and trees for properties including the Flint River Cemetery. In early July 1994, torrential rain caused the Flint River to flood and flood waters lifted several hundred caskets from the cemetery ground, tore some of the caskets asunder, and carried caskets and corpses away from the cemetery. Because of vacationing superiors, Abernathy found himself in co-command of his department during the flood. Abernathy responded to this crisis situation by taking his personal boat to the cemetery and, over a five-day period, going after the floating caskets and tying them to trees and other objects to prevent them from floating down the flooded river. The ALJ found that Abernathy toiled 22 hours without a rest the first day, nearly that many hours on each of the following two days, and 14 to 16 hours the fourth and fifth days. He and three other employees were able to recover some 400 caskets and 18 corpses, 12 of which Abernathy personally retrieved. The bodies had to be manually lifted into the boats and some of the corpses came apart during the recovery efforts so that Abernathy had to retrieve them in pieces. The ALJ found that in one instance the head of a corpse broke away and landed in Abernathy’s lap and in another instance, Abernathy’s hands sank into the decayed flesh of one of the bodies he recovered.

If there ever was a psychological injury, that was it.

So where does that leave us? As with most things, it depends on the facts. But with the advancement in the science of psychological injuries, it seems like Courts are now less reluctant to dismiss a claim for purely emotional or psychological injuries. Surely we can all agree that if you are on a plane and you think it is about to crash and you think you are in your last moments of life, that should be a compensable injury.

Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50^th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.