emotional distress Tag Archives - Atlanta Injury Lawyer Blog

A recent opinion by the The Georgia Court of Appeals, our Intermediate Appellate Court in Georgia, regarding Georgia’s obsolete “impact rule” certainly caused an impact, and not a good one. In Holt v. Rickman, A23A0612, 2023 WL 3858619 (Ga. Ct. App. June 7, 2023) an apartment guest brought action against owners and manager of apartment complex, asserting claims for premises liability and negligent hiring, retention, and supervision after she awakened to discover maintenance worker in her bed.

The facts of Holt are startling, to say the least. A guest of a resident staying in one of the apartments woke up to find an intruder lying next to her on top of the covers on the bed. The intruder was actually a maintenance employee of the apartment complex. He pulled the covers down saying he wanted to “see what she looked like under there.” As he did so, he touched the top of her head. The woman pretended to reach for a weapon and that caused the intruder to flee. As you can imagine, this bizarre incident had to have been frightening. During litigation it was discovered that the apartment complex hired the intruder/maintenance employee in 2016 despite a background check showing he had two pending child molestation charges. He had pled guilty to lesser charges of sexual battery against a child under the age of 16. He was on the Georgia Sexual Offender Registry. The Defendant, with this knowledge in hand, continued to employ him as a maintenance worker with access to a master key, which led to his ability to break into the apartment and to attempt to sexually assault the plaintiff.

The Georgia Court of Appeals held that Georgia’s antiquated “impact rule” applied to the situation and affirmed the grant of summary judgment to the apartment complex. Case dismissed. The “impact rule” is not state-of-the-art science about how an event can affect someone emotionally or psychologically. In fact, it was created in 1892, when there was very little understanding, if any, of psychological trauma. The “impact rule” says that when a person suffers no physical injury as a result of the incident that forms the basis of the claim, there is no recovery for emotional distress. 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.

The easy answer to the question I pose above is an emphatic “Yes!” Right? For any homeowner to have his or her home wrongfully foreclosed upon and scheduled to be sold at auction on the Courthouse steps, as we still do here in Georgia through nonjudicial forclosures ( a topic which deserves it’s own blog), would create enormous, undue emotional stress. Your home is, more than likely, the largest purchase you have ever made and has the highest financial investment value of anything you have ever personally invested in. We call our home our “castle.” So when a corporation wrongfully forecloses on your castle, your home, trying to sell the house right out from under your homeowning feet, don’t you think this would just naturally cause you some undue stress? Worrying whether you would lose your house? Lose your biggest investment? Lose the roof over your and your family’s heads? Should whoever did so wrongfully foreclose on your house have to face justice in the form of a jury?

One would thing so, but when it comes to our ever-increasing conservative Eleventh Circuit Court of Appeals, the answer, unfortunately, seems to be “not so fast.” In a recent 11th Circuit opinion, the Court held although a person in such a position of being wrongfully foreclosed upon may very well have a claim of intentional infliction of emotional distress, the amount of proof one must offer just to get past the judge and get to a jury may be impossible to meet, thus ending the homeowner’s ability to seek redress for the wrong. In Lodge v. Kondaur Capital Corp., et. al, issued on May 8, 2014, the Eleventh Circuit (of which Georgia is a part) held that the plaintiffs, the Lodges, had not offered enough “proof” of emotional distress suffered by them at the thought of their home being wrongfully foreclosed upon. The Lodges, at the time, were in bankruptcy. Federal bankruptcy laws forbid foreclosure upon a home that is in bankruptcy. The Defendants in Lodge willfully violated this law, known as the “Bankruptcy stay” and moved to foreclose upon the Lodges home, even though that was the very reason the Lodges had filed for bankruptcy.

The Court found against the Lodges, denying them the right to have a jury decide their case. The Court said the Lodges hadn’t offered the Court enough proof of emotional distress. But whether there is sufficient proof of a claim should be a question to be decided by a jury, not three appellate judges. As the attorney for the Lodges, Ralph Goldberg, noted in response to this narrow opinion, “I don’t understand why anybody would not think that…hearing that your house is about to be foreclosed upon is significant emotion distress. It seems to me they’re out of touch with how normal people lead their lives.”