Can You Recover Personal Injury Damages for Witnessing a Fatal Accident?

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An accident often leaves more than physical injuries. The victims also suffer emotional trauma that may persist for weeks, months, and even years after the accident itself. For this reason, Georgia law does recognize a variety of claims for emotional damages arising from an accident caused by a third party’s negligence.

Malibu Boats, LLC v. Batchelder

Just how far can such claims go? That is a question the Georgia Court of Appeals recently confronted in Malibu Boats, LLC v. Batchelder, a personal injury case arising from a 2014 boating accident in Rabun County, Georgia. The plaintiffs–a family including two adults and four children–took out a boat manufactured by the defendant onto Lake Burton.

One of the adult plaintiffs was driving the boat. According to court records, he “performed a circular turn which resulted in the boat striking its own wake.” This caused water to spill into the boat where the children were seated. The driver then reversed throttle to try and level the boat. At this point, the plaintiffs realized that one of the children was missing. Tragically, the missing child was found “entangled in the propeller.” The child ultimately died as the result of injuries sustained. The other children suffered non-life-threatening physical injuries, and at least one child “began hyperventilating and vomiting.”

The plaintiffs subsequently sued the defendant, alleging the negligent design of its boat led to the accident that killed the one child and caused physical and emotional injuries to the other plaintiffs. The defense moved for summary judgment against the three surviving children, arguing they were not entitled to damages for “negligent infliction of emotional distress” (NIED) under Georgia law. The trial judge denied the motion but certified the issue for immediate appeal.

The Court of Appeals agreed with the trial judge that the children could pursue damages for NIED but limited the scope of their claim. The first question the Court of Appeals needed to address was whether “contact with water” constituted enough of a physical injury upon which to base an emotional distress claim. Under Georgia law, there must be some “physical impact resulting in physical injury.” In this case, the appeals court said it was premature to conclude the children did not suffer a physical injury. It is possible for a reasonable jury to find 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,” could meet the physical impact requirement of Georgia law.

However, the Court of Appeals rejected the children’s claim for emotional damages arising from the fact they witnessed the “overall traumatic scene” of the other child’s death. In Georgia, a person can not recover damages for mental suffering that is “distinct and separate” from any physical injury. The Georgia Supreme Court has recognized a limited exception to this rule for situations in which a parent and child are both injured in an accident, and the parent watches the child die, but that does not apply to the facts of this case.

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Frequently Asked Questions

Here are some of the most common questions people ask us about personal injury. We’re happy to answer your questions at your personalized consultation.
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Can any attorney handle a personal injury case?

Any attorney that is licensed in the jurisdiction where your case is can represent you. But a personal injury attorney has specialized experience and resources. They understand how a personal injury claim can be complex, and they can identify issues that are the most important to your case. At The Persons Firm, our entire practice is devoted to the needs of personal injury victims.

How long do I have to file a personal injury claim?

Most Georgia personal injury claims must be filed within two years of the accident. When a claim involves the government, the deadline is much shorter. You should never wait to contact a lawyer to start preparing your case.

How do you start a personal injury case?

You start a personal injury case by determining the grounds for compensation and who may be responsible to pay. Then, you prepare a summons and complaint, file it in the court with jurisdiction, and serve each defendant. Sometimes, you can negotiate a settlement directly with the insurance company. But direct negotiations don’t count as formally starting a personal injury case. While you negotiate, the deadline to start the case still applies.

What is a personal injury consultation?

A personal injury consultation is a conversation with a lawyer about your case. The consultation may cover whether you have a claim for personal injury compensation, what your claim may be worth and the strengths and weaknesses of the case. You will talk about how legal representation works. You’ll meet the legal team that would handle your case if you hire them.

What kind of lawyer do I need to sue for an injury?

A lawyer who handles injury lawsuits is a personal injury lawyer. You choose and hire the lawyer yourself. They represent your interests and file a legal claim on your behalf.

Do I have a good personal injury case?

To have a good personal injury case, you must have evidence to prove that someone else is legally at fault for causing your injuries. Usually, this is based on negligence, or their failure to exercise reasonable care and caution in a situation. It may also be based on recklessness or intentional harm. In addition, you must show what damages you have and what compensation you should receive.

How much compensation can I get for an injury case?

In Georgia, each case for personal injury compensation is valued individually. It depends on the defendant’s degree of fault and what damages you have. Damages may include economic and non-economic harm. Non-economic harm means pain and suffering, emotional anguish, disability and other intangible losses.

Will I have to testify in court for my personal injury case?

We understand the thought of going to court can cause anxiety. Most personal injury cases don’t require the victim to testify in court. As your lawyers, we’ll work to understand your goals. If called to testify, we’ll prepare with you and represent you in court. With our team of personal injury lawyers, you’ll always be supported and prepared.

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