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Warnock v. Sandford

Court of Appeals of Georgia, Third Division

March 13, 2019

WARNOCK
v.
SANDFORD et al.

          GOBEIL, COOMER and HODGES, JJ.

          COOMER, JUDGE.

         Henry Edward Sandford and his wife Tina Sandford sued Clifton Warnock[1] 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.

         "On appeal, the evidence is construed most strongly to support the verdict and judgment." Tice v. Cole, 246 Ga.App. 135, 135 (537 S.E.2d 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:

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 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.

         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 S.E.2d 311) (2011) (citation omitted). Our review of a jury instruction is de novo. Jordan v. State, 322 Ga.App. 252, 255 (4) (a) (744 S.E.2d 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 S.E.2d 451) (2002) (citation and punctuation omitted). The Restatement of Torts 2d, ยง456 (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 ...


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