MALIBU BOATS, LLC F/K/A MALIBU BOATS, INC. v. STEPHAN PAUL BATCHELDER
MALIBU BOATS, LLC F/K/A MALIBU BOATS, INC. v. STEPHAN PAUL BATCHELDER
Opinion
In this interlocutory appeal in a negligence case, we are asked to determine whether a series of events triggered by water swamping a watercraft may constitute a sufficient physical impact, if the events inflict personal injury to the occupants of the watercraft, so as to allow recovery for emotional damages 1 *317 under Georgia's impact rule. In denying Malibu Boats, LLC f/k/a Malibu Boats, Inc. and Malibu Boats West, Inc.'s (collectively, "Malibu") motions for partial summary judgment on this issue, the Superior Court of Rabun County found that jury questions remained concerning whether the appellees sustained a physical impact, whether any such impact caused the appellees to suffer physical injuries, and whether the appellees suffered emotional distress as a result of any alleged physical injuries. Because we cannot say, as a matter of law, that the events triggered by water swamping a watercraft due to an allegedly negligent design of the watercraft could not fulfill the physical impact requirement of the impact rule, we affirm the trial court's order denying Malibu's motions for partial summary judgment in part. However, we disagree with the trial court's suggestion that certain plaintiffs may be able to recover damages for emotional distress solely from witnessing a traumatic scene and, therefore, reverse that portion of the trial court's order.
Under Georgia law,
[s]ummary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.
(Footnote omitted.)
Grizzle v. Norsworthy
,
After boating for some time, and while the children argued over whether to return to the dock, Ficarra performed a circular turn which resulted in the boat striking its own wake. At that point, water began to spill over the bow of the boat, where the children were seated. The children reported that the water in the bow reached their shin areas and their knees. The children panicked, and Zack jumped from the boat into the lake to reduce the weight in the bow, while Kayla and Josh scrambled to the rear of the boat; unbeknownst to the other occupants of the boat, Ryan either jumped or was washed from the boat.
In an attempt to level the boat and prevent it from foundering, Ficarra placed the throttle in reverse. Ficarra then stopped the engine and heard everyone yelling that they didn't see Ryan. Darin Batchelder and Ficarra jumped in the water to look for Ryan, and Ficarra found him entangled in the propeller. 2 Ryan died as a result of serious injuries he suffered after being struck by the propeller. In addition, at some point during the ordeal, Zack scraped his stomach as he attempted to re-enter the boat, Kayla suffered a bruise on her shin as she scrambled to the rear of the boat, and Josh began hyperventilating and vomiting shortly thereafter.
As a result of the accident, Ryan's parents, Zack, Kayla, Josh, and Darin Batchelder filed suit against Malibu and others for negligence. 3 Malibu moved for partial summary *318 judgment against Zack, Kayla, and Josh Batchelder ("the minor plaintiffs"), asserting that the minors were not entitled to damages for negligent infliction of emotional distress because they were unable to satisfy any element of the impact rule. The trial court found that jury questions remained concerning whether elements of the impact rule had been met and denied Malibu's motions. The trial court granted Malibu a certificate of immediate review, and we granted Malibu's application for interlocutory appeal. This appeal followed and, for the reasons explained below, we agree with the trial court that material issues of fact remain concerning whether the impact rule has been satisfied, but disagree as to the scope of injuries which are recoverable by the minor plaintiffs.
1. In its first enumeration of error, Malibu contends that the trial court erred by finding that "the impact of water ... was sufficient impact under Georgia law to sustain claims for emotional distress damages. ..." However, what the trial court found was that "[w]hether the impact of water slamming into the children and knocking them from their seats and out of the boat is sufficient 'impact,' is a jury question. ..." We agree with the trial court that a question of fact remains as to whether the minor plaintiffs sustained a physical impact under the impact rule.
"[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 to the plaintiff causes the plaintiff's mental suffering or emotional distress."
Lee v. State Farm Mut. Ins. Co.
,
The parties have not cited, and we have not found, any Georgia authority addressing a relationship between contact with water and the "physical impact" element of the impact rule. Because a "physical impact" may be sustained in virtually innumerable ways, the facts of this case fall within a broad spectrum bounded on the one side by cases in which evidence of a physical impact was clear,
5
and on the other by those cases in which it was apparent no physical impact occurred.
6
Relative to this case, the potentially harmful effects of water generally, and wakes produced by watercraft in particular,
*319
have been recognized and regulated in other contexts of Georgia law. See, e.g., OCGA § 52-7-2 (public policy to "promote safety for persons and property in and connected with the use, operation, and equipment of vessels"), OCGA § 52-7-18 (d) ("Powered vessels approaching nonpowered vessels shall reduce their speed so that their wake shall not endanger the life or property of those occupying the nonpowered vessel.").
7
As a result, we cannot say at this stage of the proceedings, as a matter of law, that a watercraft's contact with water, including a collision with a wall of water such as a wake,
8
which results in swamping due to another's negligence, does not satisfy the first element of the impact rule.
9
Compare
Canberg v. City of Toccoa
,
2. Next, Malibu asserts that the trial court erred in finding that the minor plaintiffs' injuries "created a jury question as to whether the water impact caused the physical injur[ies]. ..." The trial court determined that the minor plaintiffs' injuries "are evidence of injury sufficient to satisfy the second element of the impact rule and create a jury question as to whether the impact caused the physical injury." Again, we agree with the trial court on this issue.
To satisfy the second element of the impact rule, the physical impact sustained by the plaintiff must result in a physical injury. See, e.g.,
Hang , supra at 179,
3. Finally, Malibu argues that the trial court incorrectly applied the third element of the impact rule when it found that the minor plaintiffs' "alleged injuries and 'overall traumatic scene' were sufficient to create a jury question regarding emotional distress claims." After citing
Jordan v. Atlanta Affordable Housing Fund
,
In this case, the minor plaintiffs sought damages for "severe, debilitating, and likely permanent emotional trauma, mental anguish, and suffering." Recovery for emotional distress following a physical injury caused by another's negligence "is limited to compensation for ... any mental suffering or emotional distress [the plaintiff] incurred as a consequence of [the plaintiff's]
physical injuries
." (Emphasis supplied.)
OB-GYN Assoc. of Albany v. Littleton
,
However, we depart from the trial court's apparent conclusion that the minor plaintiffs may be able to recover emotional damages solely for being exposed to the "overall traumatic scene" following Ryan's tragic death. This holding is erroneous.
13
"[W]here [mental suffering] is distinct and separate from the physical injury, it cannot be considered."
Lee , supra at 585 (I),
Despite multiple opportunities to create exceptions to the impact rule due to its sometimes harsh results, the Supreme Court of Georgia has recognized only
*321 a single, carefully circumscribed exception to the physical impact rule, authorizing recovery of damages by a parent where the parent and her child both suffered a physical impact that caused them both physical injuries, even if the parent's emotional distress arose not only from her physical injury but also from watching her child suffer and die.
Coon , supra at 734 (4),
In sum, the trial court correctly found that issues of fact remain concerning whether the minor plaintiffs sustained a physical impact, whether any such impact caused the minor plaintiffs to suffer physical injuries, and whether the minor plaintiffs suffered emotional distress as a result of any of their own alleged physical injuries. However, the trial court erred by suggesting that the minor plaintiffs may be able to recover damages for emotional distress solely "flowing from the ... overall traumatic scene." Such damages are currently precluded as a matter of well-settled Georgia law. See
Coon , supra at 734-735 (4),
Judgment affirmed in part and reversed in part.
McFadden, P. J., and Rickman, J., concur.
Malibu Boats, LLC f/k/a Malibu Boats, Inc. and Malibu Boats West, Inc. characterized the appellees' claims as seeking damages for "negligent and intentional infliction of emotional distress," while the appellees state they "have never sought recovery under either of these claims" and instead seek "a jury verdict reflecting their suffering that is properly compensable under Georgia law (physical, mental, and emotional)...." The trial court evaluated the appellees' claims as arising from "negligent infliction of emotional distress and intentional infliction of emotional distress," and there is no cross-appeal by the appellees challenging the trial court's finding on that issue. See
Graybill v. Attaway Constr. & Assoc.
,
Each of the defendants filed a notice of non-party fault against Ficarro, the driver of the boat, pursuant to OCGA § 51-12-33 (d) (i).
Ryan's parents brought claims individually and as the natural guardians of Josh, while Darin Batchelder brought claims individually and as the natural guardian of Zack and Kayla.
The other defendants included One Water Ventures, LLC d/b/a Singleton Marine (the successor to the original purchaser of the boat) and Anchorage Marine, Inc. (the owner and lessee of the boat at the time of the incident). Only Malibu filed the motions for partial summary judgment at issue in this appeal. In summary, the claim of negligence against Malibu derives chiefly from allegations that the watercraft "was both unreasonably dangerous and defective at the time it was designed, fabricated, assembled, manufactured, tested, inspected, marketed and sold because it was unsafe for its intended and reasonably foreseeable uses."
There is no allegation that Malibu engaged in conduct that was "malicious, wilful, or wanton"
and
that the conduct was directed specifically at the minor plaintiffs, or that the minor plaintiffs suffered a pecuniary loss, either of which could excuse the need for a physical impact under Georgia law. See, e.g.,
Ryckeley v. Callaway
,
See, e.g.,
Wardlaw v. Ivey
,
See, e.g.,
Coon , supra at 734-735 (4),
See generally
Brockington v. Certified Electric, Inc.
,
Although used throughout the Georgia Boat Safety Act, see OCGA § 52-7-1 et seq., "wake" is not a defined term. Common usage defines a "wake" as "the track left by a moving body (as a ship) in a fluid (as water)." Webster's Ninth New Collegiate Dictionary, p. 1325 (1991). Compare OCGA § 52-7-3 (13) (" 'No wake' means that the wake or wash created by the movement of the vessel through the water is minimal.");
State v. Botsch
,
Rather than a bucolic scene of water lapping gently against the side of a boat and producing minimal splashing, evidence from the record demonstrates water swamping the bow of the boat and rising to a depth of one to two feet.
Malibu's criticism of
Chambley , supra, is misplaced. While
Chambley
is certainly factually unique, it nevertheless stands for the unremarkable proposition that there are occasions in which a jury must decide if an element of the impact rule has been satisfied. See also
Grizzle , supra at 305 (1) (a),
Similarly, Malibu's argument that the minor plaintiffs essentially inflicted injuries upon themselves-during their efforts to escape the swamping of the bow of the boat-is not persuasive. See generally
Floyd
, supra at *4,
To the extent the minor plaintiffs seek emotional damages resulting from
both
their slight physical injuries and from witnessing the aftermath of Ryan's death,
Oliver v. McDade,
To that end, jury instructions by the trial court should be tailored to limit prejudicial evidence of, as well as the jury's consideration of, the "overall traumatic scene." See generally
Bennett v. Moore
,
Conversely, a parent cannot recover for emotional distress from the death of a child during delivery, see
Littleton IV
, 261 Ga. at 664,
Because decisions of the Supreme Court of Georgia are binding upon this Court, we need not consider the trial court's statements concerning abolition of the impact rule. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. VI ("The decisions of the Supreme Court shall bind all other courts as precedents.");
Coon , supra at 734 (4),
Case-law data current through December 31, 2025. Source: CourtListener bulk data.