297 Ga. 66
FINAL COPY



                 S14G1775. OLIVER et al. v. McDADE et al.


      MELTON, Justice.

      In Oliver v. McDade, 328 Ga. App. 368 (762 SE2d 96) (2014), the Court

of Appeals affirmed the trial court’s denial of a motion for partial summary

judgment brought by Crider Transportation and Jerome Oliver, finding that a

question of fact remained whether John McDade could pursue a claim for

emotional distress pursuant to the pecuniary loss rule.1 We thereafter granted

Oliver’s petition for certiorari to consider the propriety of this ruling. For the

reasons set forth below, we affirm.

      As set forth by the Court of Appeals, the facts of this summary judgment

case viewed in favor of the nonmovant, McDade, show that

      McDade was riding as a passenger in his own truck, which was
      being driven by his close friend Matthew Wood on I-16 in Dublin,
      Georgia. McDade, Wood, and others were returning home late at

      1
        “[F]or a pecuniary loss to support a claim for damages for emotional
distress, the pecuniary loss must occur as a result of a tort involving an injury
to the person even though this injury may not be physical.” OB-GYN Assoc.
of Albany v. Littleton, 259 Ga. 663, 667 (B) (386 SE2d 146) (1989).
      night from a dirt car race in which Wood had competed, and Wood
      was towing his race car on a trailer behind McDade's truck. Just
      after driving the truck down the on-ramp onto the interstate, Wood
      noticed that something on the trailer was not secured, and he pulled
      over to the shoulder. Wood then exited the truck and walked back
      toward the trailer. A tractor-trailer owned by Crider Transportation
      and operated by Jerome Oliver swerved onto the shoulder and
      struck Wood's trailer and McDade's truck. Wood was crushed
      between the trailer and the truck and killed instantly. The impact
      threw McDade against the interior of his truck, shattered the glass
      in the rear of the truck's cab, and propelled blood and tissue from
      Wood's body onto McDade. McDade then got out of his truck,
      discovered Wood's mangled body lying partially in the road, and
      protected it from further damage by passing vehicles until
      emergency personnel arrived. Due to the collision, McDade has
      suffered neck, back and knee injuries, as well as headaches,
      insomnia, flashbacks, anxiety, depression and suicidal thoughts. He
      sought psychiatric help, was diagnosed as suffering from major
      depression as a result of the collision, and was prescribed various
      medications. Based on the collision, McDade brought a negligence
      claim against Oliver, Crider, and Crider's liability insurance carrier.
      The defendants sought partial summary judgment on any of
      McDade's claims based on emotional distress arising from having
      witnessed the injuries to Wood. The trial court initially granted the
      defendants' motion, ruling that Georgia's impact rule bars
      bystanders from recovering damages for emotional distress
      resulting from witnessing another person's injuries, but later the trial
      court granted a motion for reconsideration, finding that McDade
      could pursue a claim for emotional distress under the pecuniary loss
      rule. [The Court of Appeals] granted the defendants' application for
      interlocutory review, and [affirmed the denial of the motion for
      partial summary judgment].

Id. at 368-369.


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      As recognized by the Court of Appeals, McDade's complaint alleges that

“all of his injuries, damages and suffering were the direct result of and

proximately caused by the negligence of [Oliver].” McDade does not attempt to

separately recover for the emotional distress of witnessing his friend's suffering

and death, and, in fact, he does not dispute that he cannot recover solely for

these injuries, at least under the impact rule.2 In addition, McDade deposed that

he attributed his emotional injuries both to witnessing his friend’s death and his

own physical injuries related to his neck, back, and knee. He testified that, at

least in part, his emotional distress sprang from “being hurt, not being at work.

I stopped getting paid in February. I haven't had income since. . . .” As a result,

it is currently not possible to determine, as a question of fact, whether any

portion of McDade’s emotional distress arises solely from witnessing the

injuries to his friend. For this reason, the Court of Appeals, in Division 1 of its

opinion, properly found that a question of fact remained regarding the allocation

of McDade’s damages and affirmed the trial court’s denial of Oliver’s motion


      2
       The impact rule may be summarized as follows: “In 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 (412 SE2d 826) (1992).
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for summary judgment. Accordingly, we, in turn, affirm the Court of Appeals

finding in Division 1.

      In Division 2 of its opinion, however, the Court of Appeals went further

to assume facts not fully developed and opine as to how the law would apply to

assumed facts. These issues were not ripe for consideration. Therefore, while we

affirm the Court of Appeals holding, we must vacate Division 2 of the opinion.

      Judgment affirmed in part and vacated in part. All the Justices concur.



                           Decided May 11, 2015.

      Certiorari to the Court of Appeals of Georgia – 328 Ga. App. 368.

      McMickle, Kurey & Branch, Scott W. McMickle, Stephanie F. Brown;

Weinberg, Wheeler, Hudgins, Gunn & Dial, Robert P. Marcovitch, John K.

Train IV, Josuha S. Wood, for appellants.

      McArthur Law Firm, Katherine L. McArthur, Caleb F. Walker, for

appellees.




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