                              THIRD DIVISION
                                 GOBEIL,
                           COOMER and HODGES, JJ.

                    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


                                                                     March 13, 2019




In the Court of Appeals of Georgia
 A18A1656. WARNOCK v. SANDFORD et al.

      COOMER, Judge.

      Henry Edward Sandford and his wife Tina Sandford sued Clifton Warnock1 for

damages arising from a motor vehicle collision. Following a jury trial, the trial court

entered judgment on the jury’s verdict in favor of the Sandfords. Mr. Warnock filed

a motion for new trial, which was denied by the trial court. Mr. Warnock appeals,

contending that the trial court erred when it failed to instruct the jury on Georgia’s

impact rule and instead gave the pattern jury instruction for mental pain and suffering.

For the following reasons, we affirm.




      1
       The Sandfords also sued two other defendants, but Mr. Warnock was the only
remaining defendant at the time of trial.
      “On appeal, the evidence is construed most strongly to support the verdict and

judgment.” Tice v. Cole, 246 Ga. App. 135, 135 (537 SE2d 713) (2000) (citation

omitted). So construed, the evidence shows that on September 10, 2009, Mr. Warnock

failed to stop at a stop sign and collided with Mr. Sandford’s vehicle. Following the

accident, the Sandfords filed a complaint alleging negligence and gross negligence

against Mr. Warnock. The Sandfords’ complaint alleged that the “horrific and

catastrophic injuries suffered by [Mr.] Sandford and the other damages he and his

wife [Mrs.] Sandford sustained are the direct and proximate result of the defendants

misconduct.” Mr. Sandford sought damages for “catastrophic and permanent injuries,

the terrible pain and suffering, physical and mental, past, present and future; loss of

earnings and a diminished capacity to labor and earn money; and such other damages

as are recoverable under Georgia law.” Mrs. Sandford sought damages for loss of

consortium and loss of services of her husband.2 The complaint did not include a

claim for negligent infliction of emotional distress.

      During a charge conference conducted by the trial court prior to closing

arguments, Mr. Warnock requested the trial court to instruct the jury on Georgia’s

impact rule. Mr. Warnock’s proposed charge provided as follows:

      2
          Mrs. Sandford’s loss of consortium claim is not the subject of this appeal.

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      Pain and suffering includes mental suffering, but mental suffering is not
      a legal item of damage unless there is physical suffering also. However,
      a plaintiff may not recover for emotional distress arising from a fear of
      contracting a disease or developing a mental [sic] until [he] begins to
      manifest symptoms of the disease[.] I charge you that, in order for
      Plaintiff to recover for emotional distress (mental suffering), he must
      show that he suffered a physical impact, the physical impact caused his
      physical injury, and the physical injury caused his mental suffering and
      emotional distress. In evaluating the plaintiff’s pain and suffering, you
      may consider the following factors, if proven: interference with normal
      living; interference with enjoyment of life; loss of capacity to labor and
      earn money; impairment of bodily health and vigor; fear of extent of
      injury; shock of impact; actual pain and suffering, past and future;
      mental anguish, past and future; and the extent to which plaintiff must
      limit activities.


      Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 586 (2000) (“[T]he
      current Georgia impact rule has three elements: (1) a physical impact to
      the plaintiff; (2) the physical impact causes physical injury to the
      plaintiff; and (3) the physical injury the plaintiff causes the plaintiff’s
      mental suffering or emotional distress.”)


      The trial court denied the request and gave the following pattern jury

instruction for mental pain and suffering:

      Pain and suffering includes mental suffering, but mental suffering is not
      a legal item of damage unless there is physical suffering also. In

                                          3
      evaluating the plaintiff’s pain and suffering, you may consider the
      following factors, if proven: interference with normal living;
      interference with enjoyment of life; loss of capacity to labor and earn
      money; impairment of bodily health and vigor; fear of extent of injury;
      shock of impact; actual pain and suffering, past and future; mental
      anguish, past and future; and the extent to which the plaintiff must limit
      activities.


Suggested Pattern Jury Instructions, Vol. I: Civil Cases (2017), § 66.501 (b). Mr.

Warnock objected to the pattern jury instruction on the basis that it did not adequately

define for the jury the application of the impact rule.

      The jury returned a verdict in favor of the Sandfords in the total amount of

$14,550,000, with 25% fault apportioned to Mr. Sandford. The total amount of

damages included $7 million for pain and suffering (physical and mental) and $4

million for future pain and suffering (physical and mental). Judgment was entered in

the post-apportioned amount of $10,912,500. Mr. Warnock filed a motion for new

trial based in part on his argument that the jury instruction on mental pain and

suffering was inconsistent with the impact rule in that it did not require the jury to

find that Mr. Sandford’s emotional distress was caused by his physical injuries. The

trial court denied the motion, and this appeal followed.



                                           4
      Mr. Warnock contends that the trial court erred when it declined to deliver his

proposed impact rule instruction and instead gave the pattern instruction for mental

pain and suffering, which did not adequately instruct the jury regarding the impact

rule. Specifically, he argues that the pattern charge did not encompass the third prong

of his proposed charge, i.e. that the jury could award damages to Mr. Sandford for

emotional distress only to the extent that it was caused by his actual physical injuries.

In other words, Mr. Warnock contends that the impact rule required the jury to

determine whether and to what extent Mr. Sandford’s depression and post-traumatic

stress disorder are attributable to a physical brain injury as opposed to an emotional

reaction to the consequences of his injuries. Conversely, the Sandfords contend that

Mr. Warnock conflates “negligent infliction of emotional distress,” which is limited

as a matter of law by the impact rule, and recovery for physical and mental pain and

suffering, to which the impact rule has no application.

      “It is well settled that in order for a refusal to charge to be error, the requests

must be entirely correct and accurate, and adjusted to the pleadings, law, and

evidence, and not otherwise covered in the general charge.” Bennett v. Moore, 312

Ga. App. 445, 460 (4) (b) (718 SE2d 311) (2011) (citation omitted). Our review of



                                           5
a jury instruction is de novo. Jordan v. State, 322 Ga. App. 252, 255 (4) (a) (744

SE2d 447) (2013).

       “It is well established that to recover for injuries caused by another’s

negligence, a plaintiff must show four elements: a duty, a breach of that duty,

causation and damages.” Royal v. Ferrellgas, Inc., 254 Ga. App. 696, 698 (1) (a) (563

SE2d 451) (2002) (citation and punctuation omitted). The Restatement of Torts 2d,

§456 (1965), provides: “If the actor’s negligent conduct has so caused any bodily

harm to another as to make him liable for it, the actor is also subject to liability for (a)

fright, shock, or other emotional disturbance resulting from bodily harm or from the

conduct which causes it, and (b) further bodily harm resulting from such emotional

disturbance.”

       “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.’” Oliver v.

McDade, 297 Ga. 66, 67 n. 2 (772 SE2d 701) (2015) (citation omitted). “[T]he

current Georgia impact rule has three elements: (1) a physical impact to the plaintiff;

(2) the physical impact causes physical injury to the plaintiff; and (3) the physical



                                             6
injury to the plaintiff causes the plaintiff’s mental suffering or emotional distress.”

Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 586 (I) (533 SE2d 82) (2000).

      There are three policy reasons traditionally given for having the impact
      rule and denying recovery for emotional distress unrelated to physical
      injuries. First, there is the fear[] that[,] absent impact, there will be a
      flood of litigation of claims for emotional distress. Second, [there] 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 defendant’s negligent conduct and claimed damages of
      emotional distress.


Id. at 587 (citations and punctuation omitted).

      This Court has explained that the impact rule does not apply to all claims

concerning negligent conduct. McConnell v. Dept. of Labor, 345 Ga. App. 669, 674

(1) (b) (814 SE2d 790) (2018). “To the contrary, the impact rule applies specifically

to claims for negligent infliction of emotional distress.” Id. (citations omitted). For

example, in Coon v. Med. Center, Inc., 300 Ga. 722 (797 SE2d 828) (2017), the

plaintiff sought to recover damages for the negligent infliction of emotional distress

after a hospital mishandled the remains of her stillborn baby. The Supreme Court

stated that “Georgia follows the physical impact rule for claims of negligent infliction

of emotional distress” and held that the trial court had properly granted summary

                                           7
judgment to the hospital because the plaintiff did not suffer a physical impact that

resulted in physical injury. Id. at 734-735 (4) (citation omitted). Similarly, in Hang

v. Wages & Sons Funeral Home, Inc., 262 Ga. App. 177, 180-182 (585 SE2d 118)

(2003), which involved the premature cremation of a family member’s body before

his viewing and funeral, we stated that “[a] party claiming negligent infliction of

emotional distress must therefore show a physical impact resulting in physical

injury.”

      The Sandfords’ complaint did not include a claim for negligent infliction of

emotional distress. Instead, it asserted straightforward claims of negligence and gross

negligence and alleged that the injuries suffered by Mr. Sandford and the other

damages he and his wife sustained were “the direct and proximate result of the

defendants misconduct.” Consequently, the impact rule is not applicable in this case.

Thus, the trial court’s refusal to charge the jury on the impact rule was not error. For

the same reason, Mr. Warnock’s contention that the pattern jury instruction for mental

pain and suffering given by the trial court is inadequate because it did not adequately

instruct the jury regarding the impact rule fails.

      “[O]n appellate review, jury charges must be read and considered as a whole

in determining whether the charge contained error.” Evans v. Department of Transp.,

                                           8
331 Ga. App. 313, 321 (3) (771 SE2d 20) (2015) (citation and punctuation omitted).

In addition to the pattern charge for mental pain and suffering, the trial court also

charged as follows:

      The case before you is a tort case in which the plaintiff must prove by
      a preponderance of the evidence that the negligence of the defendant, if
      any, was a proximate cause of the injuries to the plaintiff. . . . Before a
      plaintiff can recover damages from a defendant in a case such as this,
      there must be injury to the plaintiff resulting from the defendant’s
      negligence.


The trial court gave the following jury instruction on proximate cause:

      Proximate cause means that the cause which, in a natural and continuous
      sequence, produces an event, and without which cause such event would
      not have occurred. In order to be a proximate cause, the act or omission
      complained of must be such that a person using ordinary care would
      have foreseen that the event, or some similar event, might reasonably
      result therefrom. There may be more than one proximate cause of an
      event, but if an act or omission of any person not a party to the suit was
      the sole proximate cause of an occurrence, then no act or omission of
      any party could have been a proximate cause. When I use the expression
      “proximate cause,” I mean a cause that, in the natural or ordinary course
      of events, produced the plaintiff’s injury.


      No plaintiff may recover for injuries or disabilities that are not
      connected with the act or omissions of the defendant in this case. There

                                          9
      can be no recovery for any injury or disability that was not proximately
      caused by the incident in question.


      The mere fact that a collision happened and that the plaintiff may have
      sustained injuries or damages affords no basis for recovery against a
      particular defendant unless the plaintiff carries the burden of proof and
      shows that such damages were proximately caused by the negligence on
      the part of the defendant.


The trial court also instructed the jury as follows:

      No plaintiff may recover for injuries or disabilities that are not
      connected with the act or omissions of the defendant in this case. There
      can be no recovery for a particular plaintiff for any injury or disability
      that was not proximately caused by the incident in question.


      If you should find that, at the time of the incident, that the plaintiff had
      any physical condition, ailment, or disease that was becoming apparent
      or was dormant, and if you should find that the plaintiff received an
      injury as a result of the negligence of the defendant and that the physical
      injury resulted in any aggravation of a condition already pending, then
      the plaintiff could recover damages for aggravation of the preexisting
      condition.


Taken as a whole, the jury charge at issue in this case was correct and not misleading

and fully apprised the jury of the applicable law. The trial court sufficiently instructed



                                           10
the jury that Mr. Sandford’s damages for mental pain and suffering had to result from

Mr. Warnock’s negligence.

      Judgment affirmed. Gobeil and Hodges, JJ., concur.




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