                                   WHOLE COURT

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                  November 20, 2015




In the Court of Appeals of Georgia
 A15A0884. COON v. THE MEDICAL CENTER, INC.                                   DO-043

      DOYLE, Chief Judge.

      This case arises out of the mislabeling of the remains of a stillborn baby,

resulting in the funeral and burial of the wrong child. The trial court initially denied

summary judgment to the defendant hospital after concluding that under the choice-

of-law rule of lex loci delicti, Alabama law would govern the emotional distress

claims brought by the plaintiff mother, who first learned of the mishandled remains

when contacted at her home in Alabama. The trial court later revisited the issue,

however, and concluded that application of Alabama law would violate Georgia

public policy because Alabama does not impose an “impact rule” on plaintiffs seeking

damages for emotional distress arising from the negligent mishandling of human

remains. After concluding that Georgia law should apply, the trial court granted
summary judgment in favor of the hospital, holding that the mother’s emotional

distress claims failed as a matter of law because she could not show physical injury,

pecuniary loss, or sufficiently outrageous misconduct by the hospital. For the reasons

discussed below, we affirm.

      Summary judgment is proper only if the pleadings and evidence “show that

there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.”1 On appeal from a trial court’s grant of summary

judgment, we “conduct a de novo review, construing all reasonable inferences in the

light most favorable to the nonmoving party.”2

      So viewed, the record shows that Amanda Rae Coon lives in Opelika,

Alabama. On February 8, 2011, Coon, who was 37-weeks pregnant, went for a

routine prenatal examination at her obstetrician-gynecologist’s office in Columbus,

Georgia. During the examination, Coon learned that her unborn baby did not have a

heartbeat.




      1
          OCGA § 9-11-56 (c).
      2
          Bank of North Ga. v. Windermere Dev., 316 Ga. App. 33, 34 (728 SE2d 714)
(2012).

                                          2
      The following day, Coon was admitted to a Columbus hospital owned by The

Medical Center, Inc. (the “hospital”), where her labor was induced and she delivered

a stillborn baby girl. After the delivery, the hospital’s bereavement coordinator spoke

with Coon and her father, who informed the coordinator that the remains of the baby

were to be released to a funeral home in Opelika. The bereavement coordinator

completed a mortuary permit and supporting documents that included the pertinent

funeral home information and placed these documents with Coon’s patient chart.

      The stillborn baby initially remained with Coon in her hospital room, but

Coon’s mother later informed the bereavement coordinator that Coon was tired and

asked that the baby be removed. The coordinator placed Coon’s baby in a separate

holding room on the same floor until someone could take the baby to the hospital

morgue. In addition to Coon’s baby, there was a smaller stillborn baby boy, who was

less than 20 weeks in gestation, already in the holding room.

      When the bereavement coordinator placed Coon’s baby in the holding room

with the smaller baby, the hospital floor was in the middle of the evening shift

change. A nurse whose shift had just begun volunteered to transport both babies from

the holding room to the morgue. Under a hospital policy put into effect two days

earlier, identification tags were to be placed on the arm and leg of a stillborn baby and

                                           3
on the outside of the cadaver bag before being delivered to the morgue. The nurse

filled out the three tags for both of the babies.

      The nurse had not yet had an opportunity to affix the identification tags when

a hospital security guard came to the floor and asked the nurse if she was ready for

him to escort her to the morgue with the babies. Because the babies were not yet

prepared for transport to the morgue, the security guard decided to assist the nurse

with the placement of the identification tags. The security guard had never tagged a

deceased baby, and his job duties did not include tagging the remains of deceased

patients or preparing them for transport to the morgue.

      When the security guard began assisting the nurse, they mixed up the

identification tags. The nurse tagged the smaller baby with the identification tags for

Coon’s baby, and the security guard tagged Coon’s baby with the identification tags

for the smaller baby. The security guard placed a tag on the outside of the cadaver bag

for Coon’s baby, but chose not to “fool” with the tags on the baby’s body because he

did not want to remove any of the baby’s clothing. The nurse repeatedly told the

security guard that he needed to place identification tags on the body of Coon’s baby,

but he chose not to do so.



                                           4
      The nurse and security guard transported the stillborn babies to the morgue

with the wrong identification tags and logged in the remains. Because of the incorrect

identification tags, the hospital mistakenly released the wrong baby to the Opelika

funeral home.

      On February 12, 2011, Coon, her family members, and other mourners attended

a funeral at an Opelika cemetery for a deceased stillborn baby whom they believed

was Coon’s. Coon and her family members did not view the baby’s remains before

or during the funeral service after the funeral director advised against it, given the

condition of the remains.3 The costs of transporting the baby from the hospital to the

funeral home were paid by Coon’s husband through the military, and Coon’s aunts

paid for the funeral service and donated the burial plot.

      On February 23, 2011, the hospital discovered that it had released the wrong

baby to the Opelika funeral home. The hospital contacted the director of the Opelika

funeral home, informed him of the mistake, and requested contact information for

Coon’s family. The funeral director advised the hospital to contact Coon’s father



      3
        The funeral home director later testified that when he received the stillborn
baby from the hospital, he had chosen not to take the baby out of the cadaver bag or
undress her because of the state of decomposition.

                                          5
rather than Coon herself because “mentally, she [would] just not [be] able to take it”

if she learned of the mistaken identification.

      Later that day, the hospital’s chief executive officer contacted Coon by

telephone and informed her that the hospital had released the wrong baby for burial.

The following day, the baby who had been mistakenly released to the funeral home

was exhumed from the Opelika cemetery. The funeral home director then traveled to

Columbus to deliver the exhumed baby to a different funeral home and to retrieve

Coon’s baby from the hospital.

      After the exhumed baby’s remains were handed over to the representative of

another funeral home, the Opelika funeral director retrieved a cadaver bag from the

hospital morgue that had an identification tag for Coon’s baby on the outside of it.

Yet, when the director returned to his funeral home in Opelika, he discovered that the

cadaver bag contained nothing but a blanket, and he had to return again to the

hospital morgue to obtain Coon’s baby, whom hospital employees had left in a

holding room in the morgue. In violation of hospital policy, no documentation was

made in the morgue log book showing when Coon’s baby or the exhumed baby were

returned to the morgue or to show when the switch occurred and who was involved.



                                          6
      Once the funeral director obtained the proper remains from the hospital, Coon’s

baby was buried at the Opelika cemetery. The hospital paid the costs associated with

the exhumation of the misidentified baby and the subsequent burial of the correct

remains. Coon did not attend the second burial because she “could not handle having

to go through that all over again.”

      In March 2011, Coon filed the present lawsuit against the hospital, seeking

damages for the emotional distress she suffered as result of the mishandling of her

stillborn child’s remains.4 Following discovery, the hospital moved for summary

judgment, contending that Coon’s emotional distress claims failed under Georgia law

because Coon suffered no physical injury or pecuniary loss and the conduct of the

hospital was not intentional, reckless, extreme, or outrageous. In response, Coon

argued that Alabama law applied under the choice-of-law rule of lex loci delicti

because she suffered the relevant emotional distress in Opelika, where she learned of

the hospital’s mistake and the funeral service, burial, exhumation, and reburial had

occurred. Coon further argued that under Alabama law, she was not required to prove




      4
        Columbus Regional Healthcare System, Inc. was named as a defendant in the
original complaint but later was dismissed from the case.

                                         7
physical injury, pecuniary loss, or intentional or reckless misconduct to support an

emotional distress claim for the mishandling of human remains.

      The trial court concluded that Alabama law applied and denied the hospital’s

motion for summary judgment. When the hospital moved for reconsideration, the trial

court denied the motion but certified its order for immediate review. The hospital then

filed an application for interlocutory appeal. This Court initially granted the

application but later dismissed it as improvidently granted.

      Following the dismissal of the appeal, the hospital filed a renewed motion for

summary judgment, contending that Alabama law should not apply under the public

policy exception to the lex loci delicti rule and that all of Coon’s claims failed under

Georgia law. The trial court agreed with the hospital, concluding that the application

of Alabama law would contravene Georgia public policy because Alabama, unlike

Georgia, does not have an “impact rule” in emotional distress cases involving the

negligent mishandling of human remains. Applying Georgia rather than Alabama law,

the trial court further concluded that Coon’s claims failed as a matter of law under the

more stringent standard for emotional distress claims in Georgia. Consequently, the

trial court granted the hospital’s renewed motion for summary judgment, resulting in

this appeal by Coon.

                                           8
      1. Coon argues that the trial court erred by concluding that Georgia rather than

Alabama law should apply in this case based on the public policy exception to the

rule of lex loci delicti. We disagree.

      Under Georgia law, choice-of-law issues in tort cases are controlled by the rule

of lex loci delicti, which requires courts to apply the “substantive law of the place

where the tort or wrong occurred.”5 “The general rule is that the place of wrong, the

locus delicti, is the place where the injury sustained was suffered rather than the place

where the act was committed, or, as it is sometimes more generally put, it is the place

where the last event necessary to make an actor liable for an alleged tort takes place.”6

      Here, pretermitting whether the last event necessary to make the hospital liable

for the alleged tort took place in Alabama,7 Georgia law applies to Coon’s claims

against the hospital based on the public policy exception to the rule of lex loci



      5
        Intl. Bus. Machines Corp. v. Kemp, 244 Ga. App. 638, 640 (1) (a) (536 SE2d
303) (2000). See Dowis v. Mud Slingers, Inc., 279 Ga. 808, 809, 816 (621 SE2d 413)
(2005).
      6
        (Punctuation omitted.) Risdon Enterprises v. Colemill Enterprises, 172 Ga.
App. 902, 903 (1) (324 SE2d 738) (1984). See Intl. Bus. Machines Corp., 244 Ga.
App. at 640-641 (1) (a) (noting that under the lex loci delicti rule, “the place of the
wrong is where [the] injury is sustained”).
      7
          See Kemp, 244 Ga. App. at 641 (1) (a).

                                           9
delicti.8 As aptly stated by the trial court, “there is a significant difference between

Alabama and Georgia law on the issue of the impact rule. Georgia follows its impact

rule for sound reasons. It is not proper to ignore the rule of law regardless of the

compelling emotional considerations.” The policies behind Georgia’s impact rule

have been fully developed, and our Supreme Court has rejected invitations to

abandon the impact rule in difficult cases.9 Accordingly, the trial court properly

applied Georgia law to this case in granting summary judgment to the hospital.10

      2. Coon also argues that, under Georgia law, the trial court erred by ruling that

she did not suffer pecuniary loss as alleged in her First Amended Complaint.11 Under

Georgia’s impact rule, “recovery for [negligent infliction of] emotional distress is


      8
        Under the public policy exception, we will not apply the law of the place
where the injury was sustained if it would conflict with Georgia’s public policy. Cf.
Alexander v. Gen. Motors Corp., 267 Ga. 339, 340-341 (478 SE2d 123) (1996)
(applying Georgia law rather than Virginia law even though injury occurred in
Virginia because Virginia products liability law violated Georgia public policy).
      9
       See, e.g., Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 587-588 (II) (533
SE2d 82) (2000) (discussing policy implications of the impact rule and declining to
abandon it).
      10
         See Alexander, 267 Ga. at 341 (applying public policy exception because the
lex loci was “radically different” from Georgia).
      11
         That pleading alleged that Coon suffered “pecuniary loss, mental injury,
anguish, and severe emotional distress.”

                                          10
allowed only where there is some impact on the plaintiff, and that impact must be a

physical injury.”12 It is undisputed that there was no physical impact to Coon. And

although Georgia law permits an exception for certain pecuniary losses, the exception

applies only to “a pecuniary loss resulting from an injury to the person which is not

physical.”13 Here, as the trial court concluded, the funeral and burial expenses

incurred by Coon were not a direct result of the emotional injury experienced by

Coon, but were a result of having a stillborn child. Thus, the funeral and burial

expenses are not sufficient to overcome the impact rule requirement.

      With respect to the costs associated with disinterment and reburial of the

correct stillborn baby – which were not inevitable costs of having a stillborn baby –

Coon contends that the collateral source rule bars the Hospital from benefitting from

its payment (or payments by others) of those costs on her behalf.14 But, as the trial


      12
        (Punctuation omitted.) Lee, 272 Ga. at 584 (I), quoting Ryckeley v. Callaway,
261 Ga. 828 (412 SE2d 826) (1992).
      13
         (Emphasis in original; punctuation omitted.) Ob-Gyn Assoc. of Albany v.
Littleton, 259 Ga. 663, 666 (2) (B) (386 SE2d 146) (1989), overruled in part on other
grounds by Lee v. State Farm &c. Ins. Co., 272 Ga. 583, 588, n. 8 (533 SE2d 82)
(2000).
      14
        See generally Candler Hosp. v. Dent, 228 Ga. App. 421 (491 SE2d 868)
(1997) (“The common law rule in Georgia bars the defendant from presenting any
evidence as to payments of medical, hospital, disability income, or other expenses of

                                         11
court observed, these costs were not a direct result of Coon’s mental suffering. To

trigger the exception to the impact rule, the pecuniary loss must result from the

plaintiff’s injury, i.e., mental suffering, and here the disinterment and reburial costs

did not arise from her injury, even though they arose from the Hospital’s allegedly

negligent conduct.15 Thus, the trial court properly granted summary judgment to the

hospital with regard to Coon’s claims for negligent infliction of emotional distress.

      3. As for the intentional infliction of emotional distress claims, Coon

      was required to show that (1) the conduct at issue was intentional or
      reckless; (2) the conduct was extreme and outrageous; (3) there was a
      causal connection between the wrongful conduct and the emotional
      distress; and (4) the resulting emotional distress was severe. Whether a
      claim rises to the requisite level of outrageousness and egregiousness to
      sustain a claim for intentional infliction of emotional distress is a
      question of law. Moreover, it has not been enough that the defendant has


a tortious injury paid for by a plaintiff, governmental entity, or third party and taking
credit towards the defendant’s liability in damages for such payments, because a
tortfeasor is not allowed to benefit by its wrongful conduct or mitigate its liability by
collateral sources provided by others.”).
      15
        See Littleton, 259 Ga. at 666 (2) (B). Compare Nationwide Mut. Fire Ins. Co.
v. Lam, 248 Ga. App. 134, 138 (2) (546 SE2d 283) (2001) (plaintiff’s mental injury
resulted in hospitalization for ten days and medical expenses totaling more than
$12,000), questioned by Oliver v. McDade, 328 Ga. App. 368, 370 n.5 (762 SE2d 96)
(2014), which was vacated in part by Oliver v. McDade, __ Ga. __ (772 SE2d 701)
(2015).

                                           12
      acted with an intent which is tortious or even criminal, or that he has
      intended to inflict emotional distress, or even that his conduct has been
      characterized by malice, or a degree of aggravation that would entitle the
      plaintiff to punitive damages for another tort. Liability has been found
      only where the conduct has been so outrageous in character, and so
      extreme in degree, as to go beyond all possible bounds of decency, and
      to be regarded as atrocious, and utterly intolerable in a civilized
      community.16


      Here, the trial court properly concluded the hospital was also entitled to

summary judgment because the hospital’s conduct, while a “tragic mistake,” did not

rise to the level of egregiousness or outrageousness necessary to sustain this claim.17

      4. Finally, the trial court properly granted summary judgment as to Coon’s

claim for punitive damages because they are derivative of her other claims which fail

as a matter of law.18

      Accordingly, the trial court correctly granted summary judgment to the

Hospital.


      16
         (Citation and punctuation omitted.) Canziani v. Visiting Nurse Health
Systems, Inc., 271 Ga. App. 677, 679 (1) (610 SE2d 660) (2005).
      17
           See id.
      18
        See Veatch v. Aurora Loan Svcs., LLC, 331 Ga. App. 597, 602 (2) (771 SE2d
241) (2015).

                                          13
      Judgment affirmed. Phipps, P. J. and Ray, J., concur. Boggs, J., concurs in

judgment only. Andrews, P. J. and McMillian, J., concur in Divisions 2, 3, and 4 and

specially. Barnes, P. J., dissents.




                                        14
 A15A0884. COON v. THE MEDICAL CENTER, INC.



      MCMILLIAN, Judge, concurring specially.

      Under Georgia’s long-standing conflict of laws jurisprudence, Georgia

common law controls the issues in this case, but not because of the public policy

exception to the lex loci delicti rule. Although I agree that the trial court’s order

granting summary judgment to the Medical Center should be affirmed, I do not agree

with all that is said in Division 1 of the majority opinion, and thus concur specially.1



      1
          I concur fully to Divisions 2, 3 and 4 of the majority opinion.
       I agree with the majority that we begin our analysis by applying the choice-of-

law rule of lex loci delicti,2 under which the law of the state where the tort is

committed governs, and further believe that the trial court correctly concluded that

the law of the state of Alabama controls. See Dowis v. Mud Slingers, Inc., 279 Ga.

808, 816 (621 SE2d 413) (2005) (“The rule of lex loci delicti remains the law of

Georgia.”). But that determination does not end the inquiry as to what that law is.

       Under Georgia’s conflict of laws jurisprudence, once it is determined under the

relevant choice-of-law rule3 that another state’s laws control the action, the court must

then look to see whether statutory law from that state forms the basis for the right to

recover, in which case, our courts will apply the statutory law as well as the

“construction placed upon it by the highest court of such State.” Slaton v. Hall, 168

Ga. 710, 715 (148 SE 741) (1929). See also Motz v. Alropa Corp., 192 Ga. 176, 176



       2
        Some of our case law alternatively spells this term as lex loci delecti. See,
e.g., Bailey v. Cottrell, Inc., 313 Ga. App. 371 (721 SE2d 571) (2011).
       3
        In addition to lex loci delicti for tort cases, Georgia applies the traditional rule
of lex loci contractus in contract cases. See General Telephone Co. of Southeast v.
Trimm, 252 Ga. 95, 95 (311 SE2d 460) (1984) (“Under this approach, contracts are
to be governed as to their nature, validity and interpretation by the law of the place
where they were made, except where it appears from the contract itself that it is to be
performed in a State other than that in which it was made, in which case . . . the laws
of that sister State will be applied.”) (citation and punctuation omitted).

                                             2
(1) (15 SE2d 237) (1941) (“The rights of the parties to a contract made and to be

performed in another State are controlled not only by its pertinent statutes but by the

decisions of its appellate courts construing and applying those statutes.”); Lay v.

Nashville, Chattanooga & St. Louis R. Co., 131 Ga. 345, 345 (62 SE 189) (1908)

(“courts of this State will follow the decisions of a sister state in construing the

statutes thereof”); Krogg v. Atlanta & West Point R., 77 Ga. 202, 214 (1886) (“As to

the construction which the courts of that State place upon its own statutes or other

local laws bearing on the case, we will follow such construction.”).

      Our appellate courts have taken a markedly different approach when common

law rather than statutory law governs. As explained in Nisbet v. Trustees of Jesse

Parker Williams Hospital, 189 Ga. 807 (7 SE2d 737) (1940), if the foreign state was

one of the original thirteen American colonies or was derived from the territory

encompassed in one of the colonies, “the construction of the common law given by

the courts of this State will control, in preference to the construction given by the

courts of the State of the contract.” Id. at 811; Motz,192 Ga. at 176. In other words,

our courts will presume that the common law of the other state is the same as the

common law in Georgia and thus will apply Georgia law. See Slaton, 168 Ga. at 718

(on rehearing, clarifying that Georgia rule applies); Record Truck Line, Inc. v.


                                          3
Harrison, 109 Ga. App. 653, 658 (3) (137 SE2d 65) (1964) (“The common law as

applied by the courts of this State is the common law.”). That is because the “common

law is presumed to be the same in all the American States where it prevails. Though

courts in different States may place a different construction upon a principle of

common law, that does not change the law. There is still only one right construction.”

Slaton, 168 Ga. at 716. And not only are our courts “competent to decide” what the

common law is, “but it is its duty to decide, the common law being the same in both

jurisdictions.”4 Krogg, 77 Ga. at 214. See also Risdon Enterprises, Inc. v. Colemill

Enterprises, Inc., 172 Ga. App. 902, 904 (2) (1984) (“Where the rights of parties


      4
         I recognize that these presumptions may seem anachronistic and peculiar, but
that is the law as set out by our Supreme Court, which has not been overruled.
Notably, as recently as 1984, the Supreme Court cited Nisbet favorably and quoted
a Court of Appeals case describing Nisbet as “the leading Georgia case explanatory
of the law of lex loci contractus.” (Citation and punctuation omitted.) General
Telephone Co. of the Southeast v. Trimm, 252 Ga. 95, 96 (311 SE2d 460) (1984). And
federal courts in the Eleventh Circuit, in applying Georgia’s conflict-of-law rules,
have likewise found that these presumptions remain good law. See, e.g., Frank
Briscoe Co., Inc. v. Ga. Sprinkler Co., 713 F2d 1500, 1503 (11th Cir. 1983) (“When
no statute is involved, Georgia courts apply the common law as developed in Georgia
rather than foreign case law.”); In re Tri-State Crematory Litigation, 215 F.R.D. 660,
677 (N.D. Ga. 2003) (“The Court, bound by case law from the Supreme Court of
Georgia and the United States Court of Appeals for the Eleventh Circuit, finds that
if no foreign statutes are ‘involved,’ then the Court must apply Georgia law.”); Briggs
& Stratton Corp. v. Royal Globe Ins. Co., 64 FSupp.2d 1340, 1343 (M.D. Ga. 1999)
(collecting cases decided since Frank Briscoe and concluding that Nisbet remains
good law).

                                          4
depend upon South Carolina law, and no statute of that state is pleaded or proved, this

court will presume that the common law is to be applied there.”); Green v. Johnson,

71 Ga. App. 777, 778 (32 SE2d 443) (1944) (“Where suit is brought in this State to

recover damages for personal injuries sustained in a sister State, which was one of the

thirteen original States, the rights of the parties as to the merits of the case as

distinguished from procedure are to be determined by the law of such sister State, and

where no statute of that sister State is pleaded or shown, it will be presumed that the

common law is of force there.”). See generally John B. Rees, Jr., Choice of Law in

Georgia: Time to Consider a Change?, 34 MERCER L. REV. 787, 789-90 (1983).

      On the other hand, if the other state was never part of the original thirteen

colonies or their territories, “[t]here is no presumption that the common law of

England exists in such a State” because the state clearly did not “inherit its laws from

England.” Nisbet, 189 Ga. at 811. “Under such circumstances, the law of the foreign

State must be pleaded, in the absence of which it will be presumed that the law of this

State obtains therein.” Id.

      Applying these rules here, Coon does not contend that an Alabama statute

governs her claims. And, “[w]hile Alabama was not one of the thirteen original

colonies[,] it was formed from a part of the territory of Georgia.” Record Truck Line,


                                           5
109 Ga. App. at 658 (4). Thus, this Court is not bound by the common law as set out

by the courts of Alabama, and we must apply Georgia law on recovery of emotional

distress damages. See Slaton, 168 Ga. at 714 (in negligence case on behalf of the

estate of passenger killed in a car wreck in Alabama, Georgia common law on the

degree of care applies); Lay, 131 Ga. at 346 (granting new trial in suit for personal

injuries sustained in Alabama because trial court charged on Alabama law even

though “substantially the same language may have been used by the Supreme Court

of Alabama, in delivering an opinion”); Krogg, 77 Ga. at 214 (refusing to apply

Alabama common law on liability of master for injury committed by a fellow servant

and applying Georgia law).

      For the foregoing reasons, I would affirm the grant of summary judgment by

the trial court, albeit for a different reason, and find it unnecessary to reach the

question of whether the public policy exception applies.5


      5
        The dissent asserts that the right for any reason rule does not apply in this
instance because the specific argument was not made below. However, it is well
established that “[w]e will affirm a grant of summary judgment if it is right for any
reason, whether stated or unstated in the trial court’s order, so long as the movant
raised the issue in the trial court and the nonmovant had a fair opportunity to
respond.” (Citation and punctuation omitted; emphasis supplied.) Godwin v. Mizpah
Farms, LLLP, 330 Ga. App. 31, 38, n.7 (766 SE2d 497) (2014). The hospital raised
the issue that under the applicable conflict of law principle of lex loci delicti, Georgia
law applied, and Coon had a fair opportunity to respond. This Court should not be

                                            6
      I am authorized to state that Presiding Judge Andrews joins in this special

concurrence.




bound by the parties’ inaccurate and incomplete application of the law.

                                        7
 A15A0884. COON v. THE MEDICAL CENTER, INC.



      BARNES, Presiding Judge, dissenting.

      I respectfully dissent because Alabama law applies to plaintiff Coon’s

emotional distress claims under the choice-of-law rule of lex loci delicti, and the trial

court’s order granting summary judgment to the defendant hospital therefore should

be vacated and the case remanded for application of the proper law. Contrary to the

majority opinion, the public policy exception to the lex loci delicti rule does not apply

here, given that application of Alabama law in a case involving the mishandling of

human remains does not seriously contravene the public policy underlying Georgia’s

impact rule. And contrary to the special concurrence, the fact that Coon does not
point to an Alabama statute to support her claims has no bearing under the

circumstances of this case, where the hospital did not raise that issue in the court

below, Coon had no notice or opportunity to be heard on the issue, and the trial court

never considered the issue as part of its summary judgment ruling.

      Given the facts of this case, Alabama rather than Georgia law should apply

under the choice-of-law rule of lex loci delicti. Under that rule, courts apply the

“substantive law of the place where the tort or wrong occurred.” Intl. Bus. Machines

Corp. v. Kemp, 244 Ga. App. 638, 640 (1) (a) (536 SE2d 303) (2000). The place

where the tort or wrong occurred “is the place where the injury sustained was suffered

rather than the place where the act was committed,” or put a different way, “the place

where the last event necessary to make an actor liable for an alleged tort takes place.”

(Citation and punctuation omitted.) Risdon Enterprises v. Colemill Enterprises, 172

Ga. App. 902, 903 (1) (324 SE2d 738) (1984).

      The hospital’s mishandling of the remains of Coon’s stillborn baby occurred

in Georgia, but Coon was at her home in Alabama when she received the telephone

call from the hospital in which she first learned of the mistake. Before that telephone

call, Coon could not have logically suffered emotional injury as a result of the

hospital’s alleged tortious conduct because she had been unaware of what had


                                           2
occurred. It was at that point, upon finding out that the hospital never released her

stillborn baby to the Alabama funeral home, that she had buried the wrong baby, and

that she was going to have to endure another burial, that Coon began suffering

emotional distress related to the hospital’s mishandling of the remains. In addition,

the initial funeral service and the burial, exhumation, and second burial all occurred

in Alabama. Based on this record, Coon’s injury clearly was sustained in Alabama;

therefore, the “last event” related to her emotional distress claim occurred in that

state, and Alabama rather than Georgia law should apply under the rule of lex loci

delicti. See Intl. Bus. Machines Corp., 244 Ga. App. at 641 (1) (a).

      As the majority opinion points out, application of the rule of lex loci delicti is

subject to a public policy exception. See Alexander v. General Motors Corp., 267 Ga.

339, 340-341 (478 SE2d 123) (1996); Carroll Fulmer Logistics Corp. v. Hines, 309

Ga. App. 695, 696-698 (710 SE2d 888) (2011); Karimi v. Crowley, 172 Ga. App.

761, 762-763 (324 SE2d 583) (1984). “Under this exception, even if the tort occurred

in another state, a Georgia court will not as a matter of courtesy or comity apply the

other state’s substantive law if the law of the other state contravenes the public policy

of Georgia.” (Citations and punctuation omitted.) Carroll Fulmer Logistics Corp.,

309 Ga. App. at 696. See Alexander, 267 Ga. at 340. But the public policy exception


                                           3
applies only if the law of the other state is so “radically dissimilar to anything existing

in our own system of jurisprudence” that it would “seriously contravene” the policy

embodied in Georgia law. Southern R. Co. v. Decker, 5 Ga. App. 21, 25 (1), 29 (2)

(62 SE 678) (1908).

       As the “radically dissimilar” requirement suggests, the fact that the law of

another state differs in some respect from our own law does not mean that the law of

the other state necessarily violates the public policy of Georgia; otherwise, a choice

of law analysis would never be necessary, and the rule of lex loci delicti would be

rendered moot. See Southern R. Co., 5 Ga. App. at 22 (2) (holding that the application

of Alabama law would not contravene Georgia public policy even though the measure

of damages under Alabama law was “dissimilar to the measure prescribed in like

cases by the statutes of this state”) (syllabus by the court). Moreover, there is a

presumption in favor of applying the lex loci delicti rule, “and the burden rests upon

the party objecting to show that the enforcement of the proper law would be

inconsistent with the domestic policy” of this state. (Citation and punctuation

omitted.) Id. at 29 (2).

       The majority opinion concludes that application of Alabama law in this case

would conflict with Georgia public policy because Alabama, in contrast to Georgia,


                                            4
does not apply an impact rule in emotional distress cases involving the negligent

mishandling of human remains. But the fact that the emotional distress law of

Alabama and Georgia differ in some respect does not demonstrate, without more, that

Georgia public policy would be undermined by applying Alabama law. Indeed, the

majority does not specifically identify or discuss any of the public policy reasons for

Georgia’s impact rule or explain how application of Alabama law in this case would

seriously contravene them. When the public policy reasons for the impact rule are

identified and considered, however, it is clear that application of Alabama law in a

case like the present one would not seriously contravene Georgia public policy.

      Under Georgia’s impact rule, “[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.” (Citation and punctuation

omitted.) Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 584 (I) (533 SE2d 82)

(2000). In Lee, our Supreme Court identified the three public policy reasons

underlying Georgia’s impact rule:

      First, there is the fear, that absent impact, there will be a flood of
      litigation of claims for emotional distress. Second, is the concern for
      fraudulent claims. Third, there is the perception that, absent impact,
      there would be difficulty in proving the causal connection between the


                                          5
      defendant’s negligent conduct and claimed damages of emotional
      distress.


272 Ga. at 587 (II). Where these three public policy concerns are not present, our

Supreme Court and this Court have recognized certain limited exceptions to the

application of the impact rule. See Lee, 272 Ga. at 588 (III) (declining to apply the

impact rule where a parent physically injured in an automobile collision sought to

recover for emotional distress caused by witnessing the death of her child in the

collision); Bruscato v. O’Brien, 307 Ga. App. 452, 457-458 (1) (705 SE2d 275)

(2010) (declining to apply the impact rule to a medical malpractice claim).

      These three public policy concerns are likewise not present in this case, where

the narrow issue is the application of Alabama law in a Georgia court to a claim for

the mishandling of human remains. As Lee makes clear, the impact rule is designed

to safeguard Georgia courts from a flood of amorphous, potentially fraudulent

emotional distress claims by injecting an objective benchmark (physical injury or

pecuniary loss) into the analysis. But there is no risk of a flood of litigation in

Georgia by simply allowing a plaintiff to pursue an emotional distress claim under

Alabama law in the limited context where the lex loci delicti rule makes that law

applicable in a Georgia court. Thus, the important gate-keeping function that the


                                         6
impact rule serves will not be undermined by allowing the present case to proceed

under Alabama law. Furthermore, concerns about avoiding fraudulent claims, and

about proving the causal connection between the alleged negligent conduct and the

claimed emotional distress, are far less pronounced in the unusual and tragic

circumstance where a child’s remains have been mishandled – a circumstance that

virtually everyone would agree would cause emotional suffering to the parent.

Consequently, application of Alabama law in this context would not seriously

contravene the public policy concerns that underlie Georgia’s impact rule, and the

public policy exception to the lex loci delicti rule therefore is inapplicable. Cf.

Dawkins v. State, 412 SE2d 407, 408 (S.C. 1991) (application of Georgia’s impact

rule in a South Carolina court would not violate the public policy exception to the

rule of lex loci delicti).

       Because Georgia’s public policy exception to the lex loci delicti rule does not

apply in this case, the trial court erred by relying upon Georgia rather than Alabama

law in evaluating Coon’s emotional distress claims on summary judgment.

Accordingly, this Court should vacate the trial court’s grant of summary judgment in

favor of the hospital and remand for the trial court to consider in the first instance

whether the hospital is entitled to summary judgment on Coon’s emotional distress


                                          7
claims under Alabama law. See City of Gainesville v. Dodd, 275 Ga. 834, 838-839

(573 SE2d 369) (2002); United HealthCare of Ga. v. Ga. Dept. of Community Health,

293 Ga. App. 84, 92-93 (2) (d) (666 SE2d 472) (2008).

      The allegedly material distinction drawn by the special concurrence between

statutory and common law claims for purposes of Georgia’s choice-of-law rules

should not change the outcome here. The special concurrence would affirm the trial

court’s grant of summary judgment to the hospital under the “right for any reason”

rule because “Coon does not contend that an Alabama statute governs her claims” and

Georgia courts allegedly are not bound by Alabama courts’ construction of the

common law of emotional distress. But this argument was not presented in the

hospital’s motion for summary judgment before the trial court, the issue was not

raised by either party on appeal, and Coon has had no opportunity to respond to the

argument or explain whether there are any Alabama statutes that bear on her claims.

      This is a court for the review and correction of errors committed in the
      trial court, and an argument that was not made below will not be
      considered on appeal. Although, as a matter of judicial economy, we
      will affirm a grant of summary judgment under the “right for any
      reason” rule, we will generally only do so when the judgment may be
      sustained upon a legal basis apparent from the record and which was
      fairly presented in the court below.


                                         8
(Citations and punctuation omitted; emphasis supplied.) Bullington v. Blakely Crop

Hail, 294 Ga. App. 147, 152 (3) (668 SE2d 732) (2008).

      Because nothing in the record before us shows that the argument raised sua

sponte by the special concurrence was fairly presented in the court below, we should

not consider whether to affirm the trial court on that alternative basis. See Bullington,

294 Ga. App. at 152 (3); Grizzle v. Norsworthy, 292 Ga. App. 303, 305 (1) (b) (664

SE2d 296) (2008). Compare Cox v. Edelson, 243 Ga. App. 5, 7-8 (1) (530 SE2d 250)

(2000) (summary judgment will not be affirmed as “right for any reason” based on

legal argument never raised below), with Abellera v. Williamson, 274 Ga. 324, 327

(2) (553 SE2d 806) (2001) (appellate court may determine whether the trial court’s

grant of summary judgment was right for an alternative reason that was raised in the

court below but not addressed by the trial court in its order). Any other result deprives

Coon of a “full and fair notice and opportunity to respond prior to entry of summary

judgment.” (Citations and punctuation omitted.) Hodge v. SADA Enterprises, 217 Ga.

App. 688, 690 (1) (458 SE2d 876) (1995).

      For these combined reasons, the emotional distress law of Alabama applies in

this case, necessitating that we vacate the trial court’s summary judgment order and




                                           9
remand for application of that law. Because the majority opinion and special

concurrence conclude otherwise, I must respectfully dissent.




                                        10
