Phillips v. MARQUIS AT MT. ZION-MORROW, LLC

Citations: 699 S.E.2d 58; 305 Ga. App. 74; 2010 Fulton County D. Rep. 2485; 2010 Ga. App. LEXIS 655Docket: A10A1179

Court: Court of Appeals of Georgia; July 8, 2010; Georgia; State Appellate Court

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Amy Phillips, representing herself and her three minor children, appealed a summary judgment against her claim of negligent infliction of emotional distress directed at the Marquis at Mt. Zion apartment complex, its management company, and employees, following harassment by her former boyfriend, Titus Walker. The Court of Appeals of Georgia upheld the summary judgment, emphasizing that for such a ruling under OCGA § 9-11-56, the moving party must show no genuine issue of material fact exists that would warrant a jury trial.

Phillips and her children moved into the Marquis in July 2006, where Walker, the father of Phillips's daughter, also resided and worked cleaning carpets. Following the end of their romantic relationship, Walker began to harass Phillips, engaging in behaviors like persistent knocking on her door, stalking her, and illegally entering her apartment. On August 28, 2006, Phillips discovered her car keys, wallet, and cell phone were missing, and sugar had been placed in her car's gas tank. She confronted Walker, who admitted to entering her apartment and vandalizing her vehicle after obtaining keys and the security code from a leasing specialist, Antino Harmon.

Harmon testified that he had been instructed to provide Walker with keys for cleaning purposes without knowledge of any prior issues between him and Phillips. He was unaware of Phillips's relationship with Walker and had not received complaints about Walker before this incident. Additionally, a regional property manager stated that residents should be informed if a vendor is given access to their unit, and it was confirmed that Phillips had not requested any carpet cleaning services.

Phillips filed a lawsuit against Marquis, Bell, Harmon, Orgaumni, Thomas, and Walker, alleging mental pain and anguish due to Walker's unlawful entry into her apartment, which caused sleep loss and nightmares. She claimed that the negligence of Harmon, Orgaumni, and Thomas, as employees of Marquis and Bell, contributed to her damages, which included injury to her peace, property loss, and emotional distress. Walker was not served with the complaint. The remaining defendants sought summary judgment, which the trial court granted, ruling that Phillips could not recover for negligent infliction of emotional distress because neither she nor her children experienced physical impact or injury, and there was no evidence of willful or wanton conduct by the defendants. Phillips appealed, arguing that the trial court erred in applying the impact rule. The court affirmed the ruling, emphasizing that emotional distress claims require evidence of physical impact or pecuniary loss from an injury. Phillips's testimony confirmed that she and her children were unaware of the incident, as they slept through it. To prove willful or wanton conduct, evidence must show an intention to cause harm. Although Phillips claimed that the defendants acted recklessly by providing Walker access, the court concluded that their actions indicated negligence rather than intent to inflict injury. Evidence showed they were unaware of the relationship between Phillips and Walker, and there was no indication of ill will towards her. Consequently, the defendants were entitled to summary judgment on the claim of willful and wanton conduct.

Phillips cannot recover damages under the pecuniary loss exception to the impact rule, which requires either actual physical injury or a pecuniary loss stemming from a non-physical injury before mental pain and suffering damages can be claimed. In the precedent case of Nationwide Mut. Fire Ins. Co. v. Lam, the plaintiff successfully claimed damages for a pecuniary loss and mental injury due to a trespass. Although Phillips experienced a pecuniary loss from the theft of her wallet and cell phone and car vandalism, she did not assert that these losses resulted from a non-physical injury. Instead, her claims pertain to a loss of 'peace, feelings or happiness' under OCGA § 51-12-6, which only allows recovery where an underlying tort exists; this is not applicable in her case. Consequently, the trial court's summary judgment in favor of the defendants was affirmed.