Strange But True Court Decisions: Negligent Infliction of Emotional Distress by Circus Horse
For amusement, each month I will post an actual published court opinion my research has uncovered, that is in my humble opinion absolutely hilarious or ridiculous. Since this is the first time I have blogged, I think it is appropriate to start with a personal favorite of mine, Christy Bros. Circus v. Turnage, 38 Ga. App. 581, 144 S.E. 680(1928), in which the court wrestled with the issue of damages for emotional distress without physical injury. After all, Christy Bros. is more than just another “crappy” opinion; it is the very touchstone of horseshit court decisions:
“Action by Velna Turnage against the Christy Bros. Circus. Judgment for plaintiff, and defendant brings error. Affirmed.
STEPHENS, J. There may be a recovery of damages for mental suffering, humiliation or embarrassment resulting from a physical injury of which they are inseparable components.
Any unlawful touching of a person’s body, although no actual physical hurt may ensue therefrom, yet, since it violates a personal right, constitutes a physical injury to that person. The unlawful touching need not be direct, but may be indirect, as by the precipitation upon the body of a person of any material substance.
Since the right to recover for a mental condition induced by the tortious act of another is dependent upon the existence of a physical injury, a person suffering a mental condition dependent upon an injury to the person may, in suing to recover damages for the injury, limit the damages to the mental suffering alone, and it is not essential to his right to the recovery of damages for mental suffering that the physical injury out of which the mental suffering arose, was productive of any actual physical hurt or damage, or that he should seek a recovery for such physical hurt or damage.
Where a petition alleged that the plaintiff was an unmarried white lady, and that while in attendance as a guest of the defendant at a circus performance given by the defendant, and while seated in one of the seats provided by the defendant for the defendant’s guests at the circus, a horse, which was going through a dancing routine immediately in front of where plaintiff was sitting, was by the defendant’s servant, who was riding upon the horse, caused to back towards the plaintiff, and while in this situation the horse evacuated his bowels into her lap, that this occurred in full view of many people, some of whom were the defendant’s employees, and all of whom laughed at the occurrence, that as a result thereof the plaintiff was caused much embarrassment, mortification, and mental pain and suffering, to her damage in a certain amount, that the damage alleged was due entirely to the defendant’s negligence and without any fault on the part of the plaintiff, the petition set out a cause of action and was good as against a general demurrer.
The evidence authorized the inference that the plaintiff was damaged, by reason of humiliation and embarrassment, in the sum of $500, and the verdict found for her in that amount was authorized.”
Commentary by Larry Pollack:
Christy Bros. set forth what came to be known as the “impact rule,” that in order for someone to recover damages for mental/emotional distress, that person must have been hit or “touched” [splattered?] by something in a physical sense. Believe it or not, this case was an important case in Georgia jurisprudence for 60 years, until it was expressly overruled by the Georgia Supreme Court in 1989 in the case of OB-GYN Assoc. v. Littleton, 259 Ga. 663. There, the court modified the rule to require that the individual sustain an actual physical harm; the court noted that the rule articulated in the Christy Bros. case was an “absurdity.” One thing is certain: that the horse was definitely not “impacted” at the time it committed its foul assault upon the nice “white lady.”
The issue of damages for the negligent infliction of emotional distress is actually an important and ever evolving aspect of personal injury law. Traditionally, under the common law, damages for emotional distress are not, and have really never been, allowed except as part-and-parcel of a physical injury to the plaintiff. Yet interestingly, at a time when some more liberal/progressive courts in states like California and New Jersey were taking “baby steps” towards allowing people to recover for emotional distress without physical harm under certain extremely limited conditions, the Georgia courts were apparently far ahead of their time–until the Georgia Supreme Court moved in the opposite direction and restricted such damages in 1989. See the famous case of Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912 (1968) (recovery of emotional distress damages allowed for shock of watching daughter die in an auto accident); or the infamous case of Eyrich v. Dam, 193 N.J. Super. 244 (App. Div. 1984) 473 A.2d 539 (five-year-old boy fatally mauled by leopard at a circus performance dies in father’s arms; father allowed to collect damages for psychological injury).
Tort law is often regarded as a form of “social engineering,” and cases discussing whether to allow damages for negligent infliction of emotional distress must decide between competing public policy interests. Without limits on the availability of damages for negligent infliction of emotional distress, the results would be absurd. For example, thousands of TV viewers, including relatives of those aboard, watching an airline disaster, could sue for psychological injuries. See Saunders v. Air Florida, 558 F. Supp. 1233 (D.C. Cir. 1983); Burke v. Pan Am, 484 F. Supp. 850 (SD NY 1980).
So courts have limited recovery to those involuntarily finding themselves directly in the “zone of danger of emotional impact.” Society expects individuals to absorb a lot of emotional harm, with the expectation that, alas, life is filled with pain and embarrassment and one’s skin must be thick. As one commentator noted, “To allow all of these feelings to be the basis of legal claims would overwhelm the courts with trivialities, sap people’s emotional resiliency, and seriously restrict freedom of movement in a society in which the tiniest social error could lead to a lawsuit.” Note, Bystander Recovery, 54 S. Cal. L. Rev. 847, 868 (1981).
But freedom of movement also has its limits, as the circus found out in Christy Bros.
Homework:
Should a woman who finds an unwrapped condom in her chicken salad wrap at Applebees, be allowed to recover for ”emotional distress?” For the answer, see Chambley v. Apple Restaurants, 233 Ga. App. 498, 504 S.E. 2d 551 (1998). Hint: testing proved that the condom was never “used.”