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Posted by H. Lee Pruett

Restaurants and other food service providers – and their insurers – need to be aware of Georgia Courts’ liberal application of the “impact rule” in claims of adulterated food.

Generally, before a plaintiff can recover damages for mental pain and suffering, the plaintiff must sustain a physical injury. See, for example, Lee v. State Farm Mutual Ins. Co., 272 Ga. 583 (2000). In this case, the Georgia Supreme Court reiterated the three elements of the rule for recovery of a mental injury: there must be (1) a physical impact, (2) causing a physical injury, and (3) mental suffering arising from the physical injury. The Court went on to expand the rule to allow recovery for the mental suffering of a mother who witnessed the suffering and death of her daughter from an automobile accident. The Court emphasized that the mother herself had sustained physical injuries from the same accident.

The Georgia Supreme Court’s ruling left intact an earlier ruling by the Georgia Court of Appeals in Chambley v. Apple Restaurants, Inc., 233 Ga. App. 498 (1998), in which the court greatly expanded the impact rule in the context of adulterated food. In this case, the plaintiff found an unwrapped condom in her salad. She later experienced “gastric problems” but no other physical injury. The court held that the plaintiff could recover for mental pain and suffering. Emphasizing the importance of Georgia statutes protecting consumers from adulterated food, the court concluded that “a jury must determine whether eating part of a salad containing a concealed, unwrapped condom is sufficient physical contact under the impact rule to permit recovery for damages. Similarly, a jury must determine whether [the plaintiff’s] reaction of vomiting and becoming nauseated shortly after ingesting the salad constituted a physical injury within the meaning of our law.” 233 Ga. App. at 500.