Sorting the Source of Pain – Georgia Supreme Court Allows Mother’s Emotional Distress Claim For Witnessing Daughter’s Death To Be Heard in Court

Are you able to distinguish between emotional suffering and physical pain? In what way can we possibly separate the horror of watching your child die in a terrible accident from the further horror of being also injured and unable to comforting that same dying child? Even in our advanced state of gentility, the State of Georgia still wrestles with this particular problem.

Other states have been compensating people for emotional distress inflicted upon bystanders for decades. Those who witness the consequences of negligence – the drunk driver who hits a pedestrian so hard the victim flies through the air and lands at the feet of another passer-by should be made to pay for that additional injury. In places like California, they are. Meanwhile, here in Georgia, we see even the State Supreme Court at odds over the matter.

In Georgia the law is very restrictive regarding bystander emotional distress, generally requiring a physical impact and injury before a claim for emotional distress based upon observed injury to another can proceed.

In This Case: Followed by the case number.

In Lee v. State Farm Mut. Ins. Co., 272 Ga. 583 (2000), a mother and her daughter were both severely injured in an automobile collision involving an unknown hit-and-run driver. The mother severely injured herself, watched as her daughter suffered and ultimately died after a full hour of agony. The mother attempted to recover for both her physical injuries and the emotional distress of witnessing her daughters suffering.

The trial court granted the insurance company’s motion for summary judgment citing the ‘impact rule.’ The Georgia Court of Appeals concurred with the trial court saying that the mother could certainly recover for her physical damages, but could not recover for her emotional distress.

This case ended up before Georgia’s Supreme Court Justices the majority of whom wisely opined that in this particular case it is impossible to separate the physical pain from the emotional suffering. The high court remanded this case back to the lower courts saying, “It will be for the finder of fact to determine whether the parent suffered emotional distress from witnessing the child’s suffering and death apart from the grief which would naturally arise from a parent’s loss of a child.”

We are pleased to see that in this Case the mother, at least, was adjudged to be allowed to have her emotional distress to be heard in court.


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