Does Georgia have negligent infliction of emotional distress?
Posted in Georgia Supreme Court decisions on June 22, 2020
In the Court of Appeals of Georgia
A20A0429. GHALI et al. v. MILES et al.
This appeal has many dramatic elements, but ultimately turns on the question of what level of control parents had over their 26 year-old son.
Alcohol, a Gun, and a Lake
The Plaintiffs were fishing on a lake by the Defendant Ghalis’ (the parents) house when the son (Basil Ghali) fired a gun from the home’s balcony into the lake — toward the Defendants. Although not injured by the gunshots (which threw up water, splashing the Plaintiffs), the Plaintiffs sued for negligent infliction of emotional distress (NIED).
Negligent infliction of emotional distress in Georgia is modeled on the common law “impact rule,” which states that the foreseeability of the emotional distress claimed is not relevant to the success of the claim. But, the emotional distress claimed must follow from some actual, physical injury caused by the defendant. This is merely for context, since in the present case this level of analysis was never reached, as will be shown.
The story behind the facts shows a son (Basil Ghali) with a substantial history of physical and psychological difficulties. He suffered brain damage, and had been treated for anxiety and depression. He’d also been arrested three times previously including two instances involving firearms. His parents were aware of all of these arrests.
On the night in question, the son had consumed a bottle of alcohol outside his parents’ home, returned there but didn’t speak to anyone before going upstairs to a balcony overlooking the lake. Seeing the Plaintiffs, the son got his handgun and proceeded to fire it into the lake. He was ultimately sentenced to three counts of aggravated assault for the act.
The NIED suit on appeal here was brought against the parents, on the premise that they were negligent in allowing their son to shoot his gun at the Plaintiffs. The Plaintiffs claim that, following the incident, the individual plaintiffs suffered nightmares, sleeplessness, worry, anxiety headaches, fear, and so forth, and also sought professional help for these ailments.
At the trial court level, the parents moved for summary judgment (summary judgment is granted for the moving party when there is no genuine issue as to any material facts in the case, and based on the facts the moving party is entitled to judgment as a matter of law.) This motion was denied, and the present Appeal is of this denial.
The parents essentially argue that, although they were aware that their son was a threat to others, they themselves did not have a duty supervise him, and further that the Plaintiffs had not suffered any physical harm.
The Court of Appeals here agreed with the Defendants: that the trial court erred by concluding that the parents had had a duty to protect the Plaintiffs from harm on the day in question.
If there wasn’t a duty, there cannot be negligence.
Every negligence claim begins with it the question of duty. If there wasn’t a duty, there cannot be negligence. Since parents do not normally have a duty to protect others for the actions of an adult son, an “assumption of a special relationship of control” must be shown to establish liability in such a case. Spivey v. Hembree, 268 Ga. App. 485 (2004). The Court there provided some guidelines, stating that such a relationship “may arise between a parent and an adult child (similar to that which may arise between a doctor and a patient), but only if a two-part test is satisfied: (1) the parent must have control over the adult child, and (2) the parent must know or reasonably should have known that the adult child was likely to cause bodily harm.”
It is the first prong of the Spivey test which failed for the Plaintiffs here. “[A]bsent being appointed the legal guardian of the person, there must be evidence of actual assumption of physical control.” Trammel v. Bradberry, 256 Ga. App. 412, 418 (2) (2002).
The Court noted that although the parents prevented the son from drinking alcohol in their house, and that the son would do chores around the house at his mother’s request, that “the imposition of these “house rules” is insufficient, under Georgia law, to impose upon the Ghalis a special relationship of control over Basil.”