Jordan v. Atlanta Affordable Housing Fund

498 S.E.2d 104, 230 Ga. App. 734
CourtCourt of Appeals of Georgia
DecidedFebruary 24, 1998
DocketA97A2018, A97A2019
StatusPublished
Cited by7 cases

This text of 498 S.E.2d 104 (Jordan v. Atlanta Affordable Housing Fund) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jordan v. Atlanta Affordable Housing Fund, 498 S.E.2d 104, 230 Ga. App. 734 (Ga. Ct. App. 1998).

Opinion

498 S.E.2d 104 (1998)
230 Ga. App. 734

JORDAN et al.
v.
ATLANTA AFFORDABLE HOUSING FUND, LTD. et al.
ATLANTA AFFORDABLE HOUSING FUND, LTD. et al.
v.
HAMMONDS.

Nos. A97A2018, A97A2019.

Court of Appeals of Georgia.

February 24, 1998.

*105 Anthony Thomasson, Decatur, for appellants.

Thomas E. McCarter, Atlanta, for appellees.

BEASLEY, Judge.

Terrorized and robbed by armed intruders, Yolanda Hammonds and her two young children sued their apartment complex owner (Atlanta Affordable Housing Fund, Ltd.) and its management company (Ledic Management Group) for negligence and recklessness in providing security for their apartment. Only the mother was touched during the intrusion, and although she deposed that neither she nor the children generally suffered any physical injuries, she also deposed the intruders yanked and pulled her by the hair during the episode. She later submitted an affidavit confirming injury to her scalp.

The court granted summary judgment against the children but denied summary judgment against the mother. The issues are (1) whether the mother's affidavit and deposition testimony about her scalp injury defeat summary judgment in light of her other deposition testimony disclaiming any physical injury, (2) whether, absent physical injury, the intentional actions of the intruders against the children can render the landlord and its management company liable, and (3) whether the alleged reckless actions of the landlord and its management company in failing to maintain adequate security were directed toward the children.

Construed in favor of plaintiffs, the evidence showed that late one night in October 1994 five armed men kicked the locked, barricaded door of the family's apartment off its frame and demanded money. Begging the intruders for mercy, the mother sent the children to their bedroom. Her son was a little over three and one-half years old and her daughter was not yet five. One man grabbed the mother by her hair, pulled her down the hall to the door of her children's bedroom, and in front of them placed a gun to her head and demanded the location of her money. She told him, and the men took the money and ran.

Traumatized by the event, the children have become withdrawn, cling to their mother constantly, experience nightmares, and one now wets the bed again. In addition to the scalp pain caused by having her hair pulled, the mother has become "jumpy" and "paranoid," and does not sleep well. These are the only injuries she identified at her deposition. Her later affidavit explains the gunman pulled out some of her hair and she suffered a scalp injury for several days. None of the victims has received medical or psychiatric treatment for emotional distress.

*106 Case No. A97A2019

1. We will first address the mother's claim. In Georgia, "there must have been actual bodily contact with plaintiff as a result of defendant's conduct for a claim for emotional distress to lie.... [T]he impact... must result in a physical injury."[1] Physical injury stemming from the emotional stress, without any impact, is not recoverable.[2] Although pecuniary loss may also serve as the basis to recover for emotional distress, the loss must result from an injury to the person, not to property.[3]

At her deposition, the mother confirmed that in response to interrogatories asking her to describe her injuries, she accurately swore that "no physical injuries were suffered by the plaintiffs." She testified again during the deposition that she suffered no physical injuries. But in response to the question "You didn't suffer any physical injury; is that correct?," she said, "Except for my head from the way they was—no."

In response to defendants' motion for summary judgment, the mother submitted an affidavit stating "[m]y head and scalp hurt when the man yanked me by my hair and forced me down the hallway, and continued to hurt for several days after the incident." Based on this affidavit and her deposition testimony, the court found she had suffered the requisite physical injury and denied summary judgment on her claim. The trial court was correct. She referred to her scalp injury in response to a deposition question about physical injuries. Her deposition testimony that she was yanked by the hair down the hallway creates a reasonable inference she suffered some physical injury from that deliberately harsh and heavy-handed bodily contact. Taken in context, her layperson denials of physical injury are understandable, for in this violent encounter neither she nor her children were killed or shot or beaten, which appeared to be a very possible outcome, and it was unnecessary to seek medical aid or administer medical treatment. We perceive no contradiction between her deposition testimony and the later-filed affidavit, and thus there is no cause to construe her deposition testimony against her.[4]

Goins v. Tucker[5] and Littleton v. OBGYN Assoc.[6] have specifically applied this principle to a plaintiff's claim of physical injury in an emotional distress case and found in those cases there was no contradiction. In each case, the previous testimony did not foreclose the possibility of physical injury.

The court correctly denied summary judgment on the mother's claims.

Case No. A97A2018

2. The children were not touched during the encounter, but recovery is available without impact or pecuniary loss if the children can show defendants' conduct was malicious, wilful, or wanton[7] and was directed toward them.[8] The children argue that the conduct of the intruders was malicious, wilful, and wanton, and was directed to them in that the gunman brought the mother to *107 their bedroom door to make the violent threats. But the children are not suing the intruders for their malicious acts; they are suing the landlord and management company for their alleged negligence and recklessness in failing to warn of prior similar incidents and to adequately secure the apartment and the complex. The court reviews the conduct of the defendants before the court, not of third parties.[9]

Claiming waiver, the children point out the defendants did not complain below that the malicious conduct was that of the armed intruders as opposed to that of the defendants. That is explained by the fact that the children did not argue the malicious exception to the impact rule until appeal.

The children allege defendants basically breached three duties: failure to warn of prior similar incidents in the apartment community; failure to install secure locks and hardware on the apartment doors; and failure to maintain a working security gate at the entrance to the complex, which was stuck open on the night in question. The children further allege the negligence of defendants showed "a reckless and wanton disregard for the safety and well-being of Plaintiffs."

We assume for purposes of this appeal that the latter allegation (not having been contradicted by evidence from defendants) meets the standard that the defendants' conduct be malicious, wilful, or wanton, for "reckless and wanton disregard of consequences may evince an intention to inflict injury."[10] But nowhere do the children allege or present evidence which would allow even an inference that defendants' misconduct was directed toward them.

Such a showing is essential. The Supreme Court in Ryckeley v. Callaway[11] reversed this Court on this very ground.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

MALIBU BOATS, LLC F/K/A MALIBU BOATS, INC. v. STEPHAN PAUL BATCHELDER
819 S.E.2d 315 (Court of Appeals of Georgia, 2018)
Phillips v. MARQUIS AT MT. ZION-MORROW, LLC
699 S.E.2d 58 (Court of Appeals of Georgia, 2010)
Clarke v. Freeman
692 S.E.2d 80 (Court of Appeals of Georgia, 2010)
Travis Pruitt & Associates, P.C. v. Hooper
625 S.E.2d 445 (Court of Appeals of Georgia, 2005)
H. J. Russell & Co. v. Jones
550 S.E.2d 450 (Court of Appeals of Georgia, 2001)
HJ Russell & Co. v. Jones
550 S.E.2d 450 (Court of Appeals of Georgia, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
498 S.E.2d 104, 230 Ga. App. 734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-atlanta-affordable-housing-fund-gactapp-1998.