Plaintiff-appellant Thomas Lee Shores appeals the Superior Court of Bibb County’s order granting defendants-appellees Modern Transportation Services, Inc. and Johnny Williamson collectively “Modern” summary judgment upon his damages complaint for negligent infliction of emotional distress. Shores alleged that he suffered post-traumatic stress disorder arising out of the collision of a truck owned by Modern driven by its employee, Williamson, and a train operated by locomotive engineer Shores at a railroad crossing near Georgia Highway 96, Crawford County, Georgia. Shores contends that summary judgment for Modern grounded upon the absence of direct impact causing him physical injury was error, urging the adoption of a “zone of danger” rule. Finding neither any injury to Shores nor any injury to a property interest in him resulting in pecuniary loss, we affirm. To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 c. A defendant may do this by showing that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. Lau’s Corp. v. Haskins , 261 Ga. 491 405 SE2d 474 1991. At the time of the accident in issue, Shores was operating the lead locomotive in the train when Williamson, driving Modern’s tractor-trailer, collided with the locomotive trailing Shores and the freight car immediately behind it. Gates down, bells ringing, and the horn sounding at the grade intersection, Shores first noticed the tractor-trailer 60 feet away from the crossing swerving to miss the train. The long hood of his locomotive, approximately fifty feet in length, was already in the intersection. Although he was moved in his seat by the collision, Shores was not physically impacted. Neither did Shores suffer any physical injury nor seek assistance for such an injury. Shores deposed, however, that he has emotional problems for which he is being treated. These he complains of as post-traumatic stress syndrome, the result of seeing the accident develop manifested by dreams, flashbacks, an episode of incontinence when passing through an intersection upon last operating a train following the accident, and panic attacks on contemplating returning to railroad work thereafter. Held :
1. In this negligent infliction of emotional distress action, Shores challenges summary judgment for Modern grounded upon the absence of direct impact causing him physical injury. A long succession of cases has explained, clarified, distinguished, and limited the rule to exclude recovery when a plaintiff sought recovery for emotional distress from the negligence of a defendant but did not suffer either physical injury or monetary loss. The rule was further significantly shaped in the Littleton cases,1 a series of cases involving a parent’s suit for emotional distress caused by the negligent delivery and subsequent alleged wrongful death of her newborn child. Footnote omitted. Nationwide v. Lam , 248 Ga. App. 134, 136 1 546 SE2d 283 2001. Littleton II ‘s holding, partially overruled by expansion, Division 2, infra, was twofold as to damages claims for emotional distress: 1 those attendant upon personal injury under Georgia’s “impact rule,” requiring the plaintiff to show an impact to his or her person resulting in physical injury thereto to allow recovery; Littleton II , supra at 665-666 2 A, and 2 those in consequence of injury to property where plaintiff showed resulting pecuniary loss upon mental injury to the plaintiff caused by a tort. Id. at 666-667 2 B2 ; see also Nationwide v. Lam , supra at 136-137 2 “A plaintiff may recover damages for emotional distress based upon an injury to property that results in pecuniary loss if injury to the person is also present even if that injury is not physical.”
