author: BARNES, Presiding Judge. BRANCH, Judge,

text:
    A14A0113.
    ZALDIVAR v. PRICKETT et al.
    (762 SE2d 166)
   BARNES, Presiding Judge.

This appeal addresses the question whether, pursuant to OCGA § 51-12-33 (c) of Georgia’s apportionment statute, a defendant may ask a jury to determine that a nonparty plaintiff’s employer shares a percentage of the fault for the plaintiff’s injuries because the employer negligently entrusted the plaintiff with one of its vehicles. Granting partial summary judgment to the plaintiff, the trial court answered this question in the negative. Because under the facts of this case the actions of the plaintiff’s employer did not “contribute” to the plaintiff’s alleged injury or damages, OCGA § 51-12-33 (c) is not applicable, and we therefore affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

The record reflects that on October 9, 2009, Daniel Prickett and Imelda Zaldivar collided at an intersection controlled by a traffic light. Both Prickett and Zaldivar were injured, and Zaldivar was taken from the scene to a hospital in an ambulance. Prickett sued Zaldivar on September 13, 2011, seeking to recover for personal injuries, and she was served on September 22, 2011. On October 21, 2011, Zaldivar filed an answer to Prickett’s complaint, claiming as affirmative defenses that the complaint failed to state a claim for relief; process and service of process was insufficient; jurisdiction was improper; venue was improper; and the action was barred by the statute of limitation. Zaldivar did not file a counterclaim against Prickett, despite having been injured in the collision.

In discovery, Prickett claimed he was clearing the intersection by turning left after the light turned red; Zaldivar claimed that Prickett turned left in front of her as she entered the intersection on a yellow light. The evidence is undisputed that Prickett was driving a company car on his way to a sales call.

Zaldivar filed a “Notice of Fault of Non-Part/’ pursuant to OCGA § 51-12-33 (d) (l), asserting that Prickett’s employer, OverheadDoor Company, was wholly or partially at fault by negligently entrusting the vehicle to Prickett despite having received three anonymous calls from people complaining about how Prickett had been driving. Based on this reasoning, Zaldivar requested that, in accordance with OCGA § 51-12-33 (c), the trier of fact be permitted to consider the fault of Overhead Door when assessing percentages of fault for the accident that caused Prickett’s injuries.

Prickett moved for partial summary judgment on Zaldivar’s affirmative defense of nonparty fault, which the trial court granted. The trial court held:

Overhead Door cannot be liable to Mr. Prickett for injuries he sustained that may have been caused by the negligence of [Zaldivar] or Mr. Prickett’s own negligence, as Overhead Door was not in breach of any legal duty owed to Mr. Prickett, nor was it the proximate cause of his injuries under the facts of this case.

Accordingly, the trial court concluded that Zaldivar would not be permitted to have the jury consider the alleged fault of Overhead Door when assessing fault for the accident that caused Prickett’s injuries under OCGA § 51-12-33 (c).

Zaldivar now appeals the trial court’s ruling, contending that OCGA § 51-12-33 (c) would authorize a jury to assess a percentage of fault against Overhead Door for the accident based on a negligent entrustment theory. We are unpersuaded.

“When interpreting a statute, we are required to consider the statute as a whole and look for the intent of the legislature. When a statute contains clear and unambiguous language, such language will be given its plain meaning and will be applied accordingly.” (Citation omitted.) Marino v. Clary Lakes Homeowners Assn., 322 Ga. App. 839, 844 (2) (747 SE2d 31) (2013). With these principles in mind, we turn to the language of Georgia’s apportionment statute, OCGA § 51-12-33.

Subsection (a) of the apportionment statute provides that the plaintiff’s damages shall be reduced according to his or her own percentage of fault for the injury or damages he or she sustained:

Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.

OCGA § 51-12-33(a).Inturn,subsection(c)allowsadefendanttoask a jury to determine whether some other person or entity shared fault for the plaintiff’s injuries even though that other person or entity is not a named party. OCGA § 51-12-33 (c). Specifically, that subsection provides: “In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” (Emphasis supplied.) OCGA § 51-12-33 (c).

Based on the plain language of the apportionment statute, “fault” cannot be assessed to a nonparty under OCGA § 51-12-33 (c) unless he or she “contributed” to the plaintiff’s alleged injury or damages. Even if the facts supported Zaldivar’s theory that Overhead Door negligently entrusted its truck to Prickett, the question is whether the negligent entrustment contributed to Prickett’s alleged injury or damages. Applying basic principles of tort law, the answer is no.

A nonparty’s negligent act cannot be said to have “contributed” to a plaintiff’s injury or damages unless there is a causal connection between them. See Black’s Law Dictionary (6th ed. 1990) (noting that the term “contribute” when “applied to negligence signifies [the] causal connection between [the] injury and [the] negligence____”). See also Merriam-Webster’s Online Dictionary, http://www.merriamwebster.com/dictionary/contribute (defining “contribute” as “to help to cause something to happen”). In the context of negligent entrustment as alleged in this case, however, that causal connection has been broken because the act of entrusting the truck to Prickett did not contribute to his injuries.

“Liability for negligent entrustment is predicated upon a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless.” (Citation and punctuation omitted.) Hicks v. Heard, 297 Ga. App. 689, 691 (2) (678 SE2d 145) (2009). Generally, however, negligent entrustment claims brought by or on behalf of an injured driver against the person who supplied that driver with a vehicle are disallowed, because the driver’s own negligence breaks the causal connection between the entrustor’s negligent act and the driver’s injury. See, e.g., Ridgeway v. Whisman, 210 Ga. App. 169, 170 (435 SE2d 624) (1993).

Thus, under these peculiar facts, despite the defendant’s creative argument to the contrary, even if Prickett himself were determined to be negligent and partially responsible for his own injuries, his own negligence would break the causal connection between any negligent act of his employer Overhead Door in entrusting a vehicle to him and the injury that Prickett sustained. As such, any negligence by Overhead Door in entrusting the vehicle to Prickett cannot be said to have “contributed” to his injuries or damages, and thus OCGA § 51-12-33 (c) simply has no application.

In reaching this conclusion, we note that Zaldivar’s reliance on the Supreme Court’s analysis of “fault” in Couch v. Red Roof Inns, 291 Ga. 359, 359-366 (1) (729 SE2d 378) (2012), is misplaced. In that case, the Supreme Court addressed whether OCGA § 51-12-33 applies to nonparty tortfeasors whose conduct was intentional rather than negligent, and in that context the Court considered liability and responsibility to conclude that “fault,” as used in the apportionment statute, included intentional conduct. Couch, 291 Ga. at 363 (1). The Supreme Court’s definition of “fault” should not be read more broadly than that.

Furthermore, the Supreme Court pointed out in Couch, 291 Ga. at 364 (1), “that statutes [such as OCGA § 51-12-33 that are] in derogation of the common law must be limited strictly to the meaning of the language employed, and not extended beyond the plain and explicit terms of the statute.” (Citation and punctuation omitted.) The Supreme Court went on to conclude that the inclusion of intentional torts within the meaning of “fault” required “no extension beyond [the] ‘plain and explicit terms’ ” of OCGA § 51-12-33. Id. In contrast to the situation in Couch, inclusion of a plaintiff’s employer as a nonparty against whom fault could be assessed under the theory of negligent entrustment would be an extension beyond the plain and explicit terms of OCGA § 51-12-33 (c), which expressly applies only to those who “contributed” to the plaintiff’s alleged injury or damages.

For these combined reasons, we conclude that OCGA § 51-12-33 (c) does not permit the defendant in a motor vehicle personal injury case to include the plaintiff’s employer as a nonparty against whom fault can be assessed under the theory of negligent entrustment. The trial court therefore did not err in granting partial summary judgment to Prickett on this issue.

Judgment affirmed.

Ellington, P. J., Doyle, P. J., Miller and Boggs, JJ., concur. Dillard, J., concurs in judgment only. Branch, J., dissents.

BRANCH, Judge,

dissenting.

If Imelda Zaldivar had sued Prickett for her own injuries that resulted from the accident, she would be authorized under Georgia law to name Overhead Door as a defendant and recover damages from Overhead Door if she could prove her claim that Overhead Door knowingly entrusted a truck to a reckless driver, i.e., Prickett, and that Overhead Door’s negligence combined with Prickett’s negligence resulting from his recklessness. See, e.g., Dougherty Equip. Co. v. Roper, 327 Ga. App. 434, 438 (2) (757 SE2d 885) (2014). And if Zaldivar had filed suit but only named Prickett as a defendant, Prickett could name Overhead Door — his own employer — as a nonparty under the Georgia apportionment statute, and try to reduce his own liability for Zaldivar’s damages by attempting to assign a percentage of fault for Zaldivar’s injuries to Overhead Door by claiming that his own employer negligently entrusted him with the truck. Yet even though Prickett’s injuries resulted from the same accident, the majority holds that because Prickett is the plaintiff, Zaldivar is prohibited from making the same assertion that Overhead Door was at least partially responsible for the accident that caused Prickett’s injuries. To reach this result, the majority reads out of the Georgia apportionment statute, the “ordinary and everyday meaning” of “fault” used in that statute, which the Supreme Court has explained, is how the term should be construed. For these reasons, I respectfully dissent.

Under OCGA § 51-12-33, the trier of fact in this case will be required to determine the percentage of “fault” of Prickett, Zaldivar and any nonparty who could be deemed at least partially “at fault” for Prickett’s injuries. Specifically, under subsection (a), the trier of fact is required to “determine the percentage of fault of the plaintiff.” And subsection (c) provides that, “[i]n assessing percentages of fault,” the trier of fact is required to consider “the fault of all persons or entities who contributed to the alleged injury or damages[.]” These determinations necessarily will impact Zaldivar’s own percentage of fault. The critical issue in this case is whether Overhead Door can be considered a person whose “fault” “contributed to [Prickett’s] alleged injury,” such that the trier of fact should consider that fault when determining Prickett’s own percentage of fault as well as Zaldivar’s.

First, it is important to note that any determination of whether Overhead Door can be assessed a percentage of fault has nothing to do with assigning liability to Overhead Door for Prickett’s injuries. Indeed, that would be expressly forbidden by the apportionment statute. Subsection (f) explains that “[assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.” (Emphasis supplied.) The subsection goes on to provide that “[w]here fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.” (Emphasis supplied.) Thus the legislature has specifically insulated nonparties who are “assessed a percentage of fault” from having that assessment used against them in any way. The legislature also has provided that a nonparty can be assessed a percentage of fault “regardless of whether the person or entity was, or could have been, named as a party to the suit.” OCGA § 51-12-33 (c). These provisions show that the plain language of the statute does not equate the concept of “fault,” as that term is used in the apportionment statute, with tort liability.

The Supreme Court of Georgia’s construction of the term “fault” as used in the statute supports this conclusion. See Couch v. Red Roof Inns, 291 Ga. 359 (1) (729 SE2d 378) (2012). In Couch, the Supreme Court examined the meaning of the term “fault” as found in OCGA § 51-12-33 as a part of determining, in a premises liability action with one defendant, that the jury should be allowed to consider the fault of a nonparty criminal assailant and to “apportion” its award of damages between the property owner and the criminal assailant. The court reasoned that “since ‘fault’ is not a term of art, but is a word of general use, it is to be given its ordinary and everyday meaning,’ ” the meaning is “broad,” and “includes ‘conduct done wrongly or negligently.’ ” Id. at 361, 362 (1) (emphasis supplied). Thus “fault is not meant to be synonymous with negligence, but instead includes other types of wrongdoing.” Id. Thus, both Couch and the plain meaning of OCGA § 51-12-33 support the conclusion that the statute considers two fundamentally different concepts: percentages of fault, in its general sense, for all who contributed to the plaintiff’s injuries; and legal liability for named parties.

Following the language of the apportionment statute and the reasoning of the Supreme Court, I would conclude that in addition to the concept of legal liability, the “fault” that is to be considered by the trier of fact when assessing percentages of fault under the apportionment statute is sufficiently broad to include the degree to which Overhead Door can be said to have caused the accident that resulted in Prickett’s injuries even though Overhead Door could have no liability to Prickett himself.

Under the tort of negligent entrustment, “a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness.” Gunn v. Booker, 259 Ga. 343, 347 (3) (381 SE2d 286) (1989) (citations and footnote omitted). See also Ridgeway v. Whisman, 210 Ga. App. 169 (435 SE2d 624) (1993). Importantly, negligent entrustment is not a form of vicarious liability; rather, it is an independent wrongful act that can combine with the negligence of the entrustee:

The liability of the owner in a negligent entrustment action does not result from imputing the negligence of the incompetent driver to the owner [;] rather “negligent entrustment of a motor vehicle to an incompetent driver is an independent wrongful act of the vehicle’s owner which is a concurrent, proximate cause of injury when it combines with the negligence of the operator.”

Ridgeway, 210 Ga. App. at 170, quoting Adams & Adams, Ga. Law of Torts, § 12-5 (1989) (citation omitted). See also Hook v. Harmon, 315 Ga. App. 278, 279 (727 SE2d 143) (2012) (“Liability also requires proof that the entrustor’s negligence is a concurring proximate cause of the accident, along with any negligence by the entrustee arising from incompetency or recklessness.”) (citation omitted). Thus, a party can be liable for negligent entrustment without an employer-employee relationship or within such a relationship where the employee is acting outside of the scope of his employment. See, e.g., Roper, 327 Ga. App. at 438 (2) (negligent entrustment claim against employer allowed even though employee was acting outside of the scope of employment at the time of the accident).

Simply put, Overhead Door plainly has a duty not to negligently entrust others with its vehicles, and a violation of that duty can lead to accidents. The fact that an action by Prickett against Overhead Door might be barred by Prickett’s own contributory negligence or another legal doctrine does not affect this conclusion. It follows that if Overhead Door knew that Prickett was incompetent to drive yet entrusted a vehicle to him despite that knowledge, it could not be said that Overhead Door was without fault — under the ordinary and everyday meaning of that term as required by Couch — for causing the accident, even if Overhead Door could not be found liable to Prickett. Overhead Door’s alleged negligent entrustment could be seen as a concurrent proximate cause of the accident even if Overhead Door could not be found liable directly to its employee. Accordingly, Overhead Door could be considered as bearing a percentage of “fault” for the accident that caused Prickett’s injuries under OCGA § 51-12-33.

This conclusion is supported by Barnett v. Farmer, 308 Ga. App. 358, 362 (2) (707 SE2d 570) (2011) (physical precedent only), a suit with only one defendant, in which Mr. and Mrs. Farmer brought suit against Barnett, and both plaintiffs and defendant claimed the other ran a red light. Id. Barnett requested that the court charge the jury on apportionment of Mrs. Farmer’s claims against him on the ground that Mr. Farmer, who was driving, was partially at fault for the accident and that he thereby contributed to his wife’s injuries. Id. This Court concluded that the jury should have been instructed to apportion any award of damages to Mrs. Farmer according to a determination of the percentage of fault of Barnett and co-plaintiff Mr. Farmer, if any, despite the fact that Mr. Farmer would be protected from liability in a suit by Mrs. Farmer by the interspousal tort immunity doctrine. Id. This Court reasoned:

[I]t would be contrary to the clear intent of the legislature to require Barnett to pay for the full amount of Shirley’s damages for the same collision simply because she was a passenger in the car her husband was driving. . . . Our holding in no way requires Shirley to file suit against her husband, but instead, precludes her from recovering from Barnett that portion of her damages, if any, that a trier of fact concludes resulted from the negligence of her husband.

Decided July 16, 2014 —

Downey & Cleveland, Sean L. Hynes, J. Colby Jones, Andrew A. Curtright, for appellant.

Slappey & Sadd, James N. Sadd, Edward M. Wynn, for appellees.

Id. at 362 (2). This reasoning is persuasive. Here, even if Prickett has no claim against Overhead Door because of his own contributory negligence, Zaldivar should not be liable to Prickett for that portion of Prickett’s damages that a trier of fact concludes resulted from Overhead Door’s contribution to the cause of the accident.

The case of Union Carbide Corp. v. Fields is distinguishable at least in part because it was decided before Couch and it does not employ Couch’s definition of “fault.” See Union Carbide Corp. v. Fields, 315 Ga. App. 554, 557 (1) (a) (726 SE2d 521) (2012) (trier of fact not authorized to apportion fault to nonparty that employed victim’s father because in Georgia, “an employer owes no duty of care to a third-party, nonemployee, who comes into contact with its employee’s asbestos-tainted work clothing at locations away from the workplace”) (citation and punctuation omitted), rev’d on separate grounds by Georgia-Pacific v. Fields, 293 Ga. 499 (748 SE2d 407) (2013).

For the above reasons, I would hold that the trial court erred by dismissing Zaldivar’s assertion of nonparty fault against Overhead Door.

       Prickett’s wife, Mary Prickett, sued for loss of consortium. For ease of reference, we will refer to the plaintiffs throughout this opinion as “Prickett.”

       “Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.” OCGA § 51-12-33 (d) (1).

       Because the criminal assailant was not a named party to the action, no literal “apportionment” of damages was authorized by subsection (b) of the statute; rather, the Supreme Court here appears to use the term “apportionment” broadly to refer to assessing the criminal assailant’s percentage of fault.

       See generally Hook, 315 Ga. App. at 279 (“[Wjhere the injured party is the entrustee, his own contributory negligence generally will bar him from recovery against the negligent entrustor.”) (citation and footnote omitted); Ridgeway, 210 Ga. App. at 170 (entrustee’s contributory negligence, or an unnamed driver’s negligence, or both, amounted to the sole proximate cause of the entrustee’s injuries; therefore the entrustor could not be liable to the entrustee’s parents for the entrustee’s injuries).

       Furthermore, in Union Carbide, as a matter of Georgia law, the nonparty at issue (Georgia Pacific) owed no duty to any named party in the suit. Here, on the other hand, Overhead Door owed a duty to the public, which necessarily includes the defendant, not to negligently entrust vehicles to its employees.


source: Caselaw Access Project

author:
DOYLE, Presiding Judge.
      McFadden, Judge, BOGGS, Judge, ANDREWS, Presiding Judge,

license: Public Domain

text:
    A14A0147.
    OLIVER et al. v. McDADE et al.
    (762 SE2d 96)
   DOYLE, Presiding Judge.

This is an interlocutory appeal from the trial court’s denial of a defense motion for partial summary judgment on the issue of whether the plaintiff in a personal injury action arising from a motor vehicle collision may recover damages for emotional distress under Georgia’s “pecuniary loss” rule. Because there exist genuine issues of material fact and the trial court did not err as a matter of law, we affirm.

Summary judgment is appropriate only if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” On appeal from the denial of summary judgment, our review is de novo, and we construe the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving party. “Moreover, we will affirm a trial court’s denial of a motion for summary judgment if it is right for any reason.”

So construed, the evidence shows that John McDade was riding as a passenger in his own truck, which was being driven by his close friend Matthew Wood on I-16 in Dublin, Georgia. McDade, Wood, and others were returning home late at night from a dirt car race in which Wood had competed, and Wood was towing his race car on a trailer behind McDade’s truck. Just after driving the truck down the on-ramp onto the interstate, Wood noticed that something on the trailer was not secured, and he pulled over to the shoulder. Wood then exited the truck and walked back toward the trailer.

A tractor-trailer owned by Crider Transportation and operated by Jerome Oliver swerved onto the shoulder and struck Wood’s trailer and McDade’s truck. Wood was crushed between the trailer and the truck and killed instantly. The impact threw McDade against the interior of his truck, shattered the glass in the rear of the truck’s cab, and propelled blood and tissue from Wood’s body onto McDade. McDade then got out of his truck, discovered Wood’s mangled body lying partially in the road, and protected it from further damage by passing vehicles until emergency personnel arrived.

Due to the collision, McDade has suffered neck, back and knee injuries, as well as headaches, insomnia, flashbacks, anxiety, depression and suicidal thoughts. He sought psychiatric help, was diagnosed as suffering from major depression as a result of the collision, and was prescribed various medications.

Based on the collision, McDade brought a negligence claim against Oliver, Crider, and Crider’s liability insurance carrier. The defendants sought partial summary judgment on any of McDade’s claims based on emotional distress arising from having witnessed the injuries to Wood. The trial court initially granted the defendants’ motion, ruling that Georgia’s impact rule bars bystanders from recovering damages for emotional distress resulting from witnessing another person’s injuries, but later the trial court granted a motion for reconsideration, finding that McDade could pursue a claim for emotional distress under the pecuniary loss rule. This Court granted the defendants’ application for interlocutory review, and this appeal followed.

1. It is undisputed that this case involves a collision resulting in physical injury to the plaintiff. Despite the defendants’ characterization of McDade’s claims as including emotional distress solely resulting from viewing his dead friend, McDade’s complaint simply asserts a straightforward negligence claim and alleges that “all of his injuries, damages and suffering were the direct result of and proximately caused by the negligence of the Defendants.” The complaint does not seek to separately recover for the emotional distress McDade experienced from witnessing his friend’s suffering and death, nor does it parse out certain portions of damages that specifically arise therefrom. Further, McDade’s deposition testimony does not establish that a discrete portion of his emotional distress was due to the traumatic experience of viewing his friend’s remains. Rather, when asked whether his emotional problems were a result of “what you saw that night or . . . your own injuries,” McDade replied, “I guess you’d say both.” When pressed for clarification, McDade explained, “I don’t know how to answer that. ... It was being hurt, and then •— being hurt, not being at work. I stopped getting paid in February. I haven’t had income since. . . .” Thus, neither the complaint nor McDade’s deposition testimony sets out any facts showing that a portion of his emotional distress arises solely from witnessing the injuries to his friend or could be apportioned to his nonphysical injuries as opposed to his physical injuries. At the very least there is a question of fact on this issue; therefore partial summary judgment is not appropriate at this time.

2. Nevertheless, to the extent that making such a distinction is possible based on the evidence in the case, McDade can recover emotional distress damages under the pecuniary loss rule. As correctly stated in Nationwide Mut. Fire Ins. Co. v. Lam,

a plaintiff may . . . recover damages for emotional distress flowing from a defendant’s negligence, notwithstanding the absence of physical injury. But these damages are recoverable only if the plaintiff has suffered a pecuniary loss and has suffered an injury to the person, albeit not physical.

The requirement of an identifiable injury imports an objective benchmark that a plaintiff must meet before recovering emotional distress damages. This objective benchmark safeguards against the dissent’s concerns that subj ective emotional distress damages may be invented out of whole cloth.

Here, we have evidence of identifiable nonphysical injuries (including an episode of depression) as well as pecuniary loss (the cost of medical treatment arising from the depression). Therefore, the trial court correctly determined that McDade can seek emotional distress damages under the pecuniary loss rule.

Judgment affirmed.

Ray, J., concurs. Phipps, C. J., Barnes, P. J., Miller and McFadden, JJ., concur fully and specially. Boggs, J., concurs specially and in judgment. Dillard, Branch and McMillian, JJ., concur in Division 1 and in judgment. Andrews, P. J., dissents.

McFadden, Judge,

concurring fully and specially.

I agree with most of what the majority has written. I disagree only with the language at Division 2, notes 5 and 6, which undertakes to disapprove prior case law. That undertaking is not necessary to our decision, and that language is therefore dicta. The ruling on appeal is the trial court’s determination that McDade may pursue a claim for emotional distress under the pecuniary loss rule. That ruling was correct and should be affirmed.

Damages for negligent infliction of emotional distress are usually not recoverable. But the impact rule and the pecuniary loss rule authorize recovery for such damages. “A claim for emotional distress damages caused by negligence must be supported by evidence that the plaintiff suffered an impact resulting in physical injury or pecuniary loss resulting from an injury to the person.” Travis Pruitt & Assocs., P.C. v. Hooper, 277 Ga. App. 1, 5 (625 SE2d 445) (2005).

The impact rule, generally speaking, authorizes recovery for emotional distress in negligence actions where the emotional distress is caused by a physical injury. “The 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.” Bruscato v. O'Brien, 307 Ga. App. 452, 456-457 (1) (705 SE2d 275) (2010) (citations and punctuation omitted).

The pecuniary loss rule allows recovery for emotional distress in a negligence action even though there may be an injury to the person that is not physical.

In cases where mere negligence is relied on, before damages for mental pain and suffering are allowable, there must also be an actual physical injury to the person, or a pecuniary loss resulting from an injury to the person which is not physical. . . . We reiterate the rule that for a pecuniary loss to support a claim for damages for emotional distress, the pecuniary loss must occur as a result of a tort involving an injury to the person even though this injury may not be physical. An injury to the reputation would be such an injury.

OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 666-667 (2) (B) (386 SE2d 146) (1989), disapproved in part on other grounds, Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 588 (III) n. 8 (533 SE2d 82) (2000) (citation omitted; emphasis in original).

In Nationwide Mut. Fire Ins. Co. v. Lam, 248 Ga. App. 134 (546 SE2d 283) (2001), we applied the pecuniary loss rule to allow emotional distress damages in an automobile collision case where there was no physical injury. In that case, although the plaintiff Lam was not physically injured, after the wreck she had anxiety from having witnessed the oncoming vehicle, and there was evidence that the collision aggravated her pre-existing mental illness. Id. at 135. While Lam could not recover under the impact rule since there was no physical injury, we held that she could recover under the pecuniary loss rule. Id. at 136 (1), 138 (2). As this court explained, the nonphysical injury requirement under the pecuniary loss rule is not limited to the example of damage to reputation as set forth in the Littleton case. Rather, such a nonphysical injury would also include a mental injury since “[a] mental injury, or the aggravation of a preexisting mental illness, is clearly an injury to the person.” Id. at 138 (2). So despite the absence of a physical injury, Lam “did suffer an injury to her person, consisting of aggravation of her preexisting mental illness, which before the collision had been stable for years.” Id. Thus, we concluded that she could pursue her claim for emotional distress damages based on her mental injury and pecuniary loss, and that the “trial court correctly denied [the defense] motion for summary judgment.” Id. Compare Owens v. Gateway Mgmt. Co., 227 Ga. App. 815, 816 (490 SE2d 501) (1997) (finding pecuniary loss rule inapplicable for lost time from work and medical bills following incident giving rise to claim of negligent failure to maintain security at apartment complex).

Likewise, in the instant case, in addition to the damage to his vehicle and his own physical injuries, there is evidence that after the collision McDade has suffered mental injuries, including major depression, and that he is under psychiatric care for such injuries. Accordingly, he may pursue his claim for emotional distress damages arising from his mental injuries. See Lam, supra at 138 (2) (plaintiff suffering nonphysical injury to the person may recover damages for emotional distress flowing from defendant’s negligence). The trial court therefore did not err in denying partial summary judgment based on the pecuniary loss rule. See generally Lee, supra at 588 (III) (reversing summary judgment to defendants by holding that parent could seek to recover for emotional distress from witnessing death of child from automobile collision “without regard to whether the emotional trauma arises out of the physical injury to the parent”).

Contrary to the dissent’s claims, affirming the trial court’s ruling does not “eviscerate[ ] the impact rule, permit[ ] litigants to routinely obtain damages for emotional distress without physical injury, [or] impermissibly suppl[y] a remedy where none existed before.” Rather, such an affirmance simply applies controlling authority from both this court and the Supreme Court of Georgia, allowing for emotional distress damages under the well-established pecuniary loss rule in limited circumstances like those found in this case.

As recounted above, our Supreme Court has established that under the pecuniary loss rule, a claim for emotional distress damages will lie where the loss occurred as a result of “an injury to the person even though this injury may not be physical.” OB-GYN Assoc., supra at 667 (2) (citation omitted). Lam, supra, correctly applied this rule to allow for emotional distress damages where the nonphysical injury to the person was a mental illness. In all material respects, Lam is factually identical to, and mandates the holding in, the instant case. Indeed, the dissent, by resorting to the argument that we should overrule Lam, which the Supreme Court previously declined to review on certiorari, implicitly recognizes that Lam is directly on point and constitutes controlling authority.

Likewise, in the factually similar case oí Lee, the Supreme Court held that when

a parent and child sustain a direct physical impact and physical injuries through the negligence of another, and the child dies as the result of such negligence, the parent may attempt to recover for serious emotional distress from witnessing the child’s suffering and death without regard to whether the emotional trauma arises out of the physical injury to the parent. This is in accord with the precepts of the impact approach and appropriately restricts recovery to those directly affected by the defendant’s negligent act or omission.

Lee, supra at 588 (III).

In reaching this decision, the Supreme Court recounted the history and policy behind the impact rule, and concluded that despite the traditional impact rule, there is no meritorious reason to refuse to extend recovery for emotional distress in an appropriate and compelling situation such as the one in that case. Lee, supra. While Lee did not discuss the pecuniary loss rule and involved a parent and child, rather than close friends, it is otherwise similar to this case and its holding is instructive. There is evidence in this case showing that both McDade and Wood sustained a direct physical impact and physical injuries through the negligence of another, and that Wood died as a result of such negligence. Thus, as in Lee, and contrary to the claims of the dissent, this is the sort of compelling situation in which allowing McDade to recover for serious emotional distress from witnessing his close friend’s suffering and death without regard to whether the emotional trauma arises out of a physical injury is appropriate since it restricts recovery to one who was directly affected by the negligent act or omission. Accordingly, because there exist genuine issues of material fact as to whether McDade is entitled to emotional distress damages under the pecuniary loss rule, the trial court correctly denied the defense motion for partial summary judgment.

BOGGS, Judge,

concurring specially and in judgment only.

The trial court in this case correctly denied the defendants’ motion for summary judgment, but I do not agree with all that is said in the majority’s opinion and Judge McFadden’s special concurrence. I therefore concur specially and in judgment only.

I agree with the majority’s conclusion that “neither the complaint nor McDade’s deposition testimony sets out any facts showing that a portion of his emotional distress arises solely from witnessing the injuries to his friend or could be apportioned to his nonphysical injuries as opposed to his physical injuries.” In my view, the indivisibility of McDade’s emotional injury resulting from a single physical impact in which he was also physically injured places this case within the scope ofrecovery allowed by the impact rule. See Lee v. State Farm Mut. Ins. Co., 272 Ga. 583, 588 (III) (533 SE2d 82) (2000).

I also agree with the analysis in Judge Andrews’ dissent regarding the pecuniary loss rule and its inapplicability to the facts presently before us.

ANDREWS, Presiding Judge,

dissenting.

For over one hundred years, through the application of the “impact rule,” Georgia’s courts have rejected steadfastly attempts to award damages for the negligent infliction of emotional distress unaccompanied by physical injury. See OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 666 (2) (B) (386 SE2d 146) (1989) ("Littleton II"); Chapman v. Western Union Telegraph Co., 88 Ga. 763 (15 SE 901) (1892); Owens v. Gateway Mgmt. Co., 227 Ga. App. 815, 816 (490 SE2d 501) (1997). Today’s decision, under the guise of the “pecuniary loss” rule as applied in Nationwide Mut. Fire Ins. Co. v. Lam, 248 Ga. App. 134 (546 SE2d 283) (2001), eviscerates the impact rule, permits litigants to routinely obtain damages for emotional distress without physical injury, and, by doing so, impermissibly supplies a remedy where none existed before. Because I conclude that Lam was wrongly decided and should be overruled, and because I believe that we should therefore reverse the trial court’s order denying the defendants’ motion for partial summary judgment based upon the pecuniary loss rule, I respectfully dissent.

1. At the core of today’s decision is the majority’s and Judge McFadden’s special concurrence’s reliance upon, and unprecedented and unauthorized expansion of, the pecuniary loss rule. The rule, articulated in Kuhr Bros. v. Spahos, 89 Ga. App. 885, 890 (81 SE2d 491) (1954), provides:

In cases where mere negligence is relied on, before damages for mental pain and suffering are allowable, there must also bean actual physical injury to the person, ora pecuniary loss resulting from an injury to the person which is not physical; such an injury to a person’s reputation, or the mental pain and suffering must cause a physical injury to the person.

(Emphasis in original.) See also Littleton II, supra, 259 Ga. at 667 (2) (B); Phillips v. Marquis at Mt. Zion-Morrow, LLC, 305 Ga. App. 74, 77 (699 SE2d 58) (2010); Owens, supra, 227 Ga. App. at 815. Stated differently, “for a pecuniary loss to support a claim for damages for emotional distress, the pecuniary loss must occur as a result of a tort involving an injury to the person even though this injury may not be physical.” Littleton II, supra, 259 Ga. at 667 (2) (B) (emphasis supplied). A key limitation on the pecuniary loss rule is that where there is an injury to property alone, “there can be no recovery for mental suffering.” Id. See also Kuhr Bros., supra, 89 Ga. App. at 890.

This case is controlled by our decision in Owens, supra, 227 Ga. App. at 815. In Owens, two armed gunmen forced their way into the plaintiff’s apartment and held her captive for 15 minutes. 227 Ga. App. at 815. The plaintiff sued the landlord for negligently failing to maintain adequate security and claimed emotional distress. Id. at 816. The trial court granted the defendants’ motion for summary judgment, and the plaintiff appealed. We held that the pecuniary loss rule did not apply because “the only pecuniary loss... is that incurred due to medical bills and lost time from work [the plaintiff] allegedly incurred because of emotional distress following the incident.” Id. As a result, we found that the pecuniary loss the plaintiff claimed “is not of the same type as that referred to in [.Littleton II] because it is itself a form of emotional distress damage as opposed to pecuniary loss” resulting from a tort “involving an injury to the person.” Id. (emphasis supplied). Owens concluded that “[t]o hold otherwise would be to allow bootstrapping of an extreme nature.” Id.

In this case, the same principles apply. As in Owens, the plaintiff’s claim for emotional distress, related to events following the collision, “is not of the same type as that referred to in [Littleton II] because it is itself a form of emotional distress damage as opposed to pecuniary loss” resulting from a tort “involving an injury to the person.” Owens, supra, 227 Ga. App. at 816. In other words, the plaintiff cannot show the nonphysical injury that he suffered as a result of the defendants’ negligence is anything other than the same emotional distress for which he seeks to recover. It follows that the plaintiff may seek damages for his emotional distress, if any, arising from the personal injuries he sustained. Absent any separate tort involving an injury to his person, however, he may not seek damages for emotional distress from witnessing the death of his friend and its aftermath. Owens rejected the circular reasoning adopted in Lam and endorsed by the majority and Judge McFadden’s special concurrence, holding that it would “allow bootstrapping of an extreme nature.” Owens, supra, 227 Ga. App. at 816.

2. In permitting a plaintiff to seek damages for negligently caused emotional distress in the absence of physical injury, Lam failed to address the prior holding in Owens.* Lam and her husband were involved in an automobile accident in which her vehicle was damaged. Lam, supra, 248 Ga. App. at 135. Although Lam’s husband was injured, Lam did not sustain any physical injury; however, she alleged that the accident aggravated a preexisting mental illness, the treatment for which resulted in medical expenses. Id. After citing Lee and the impact rule, this Court focused upon the pecuniary loss rule from Littleton II (see id. at 138), incorrectly stating that Littleton II held that “a plaintiff may recover damages for emotional distress based upon an injury to property that results in pecuniary loss if injury to the person is also present.” Id. at 136-137 (emphasis in original). In fact, Littleton IIcontains no such holding. The court in Lam conceded that Lam did not sustain a physical injury; therefore, to support its conclusion that Lam could recover damages for emotional distress under the pecuniary loss rule, the court improperly cited Littleton II, engrafted an apparent “personal property” exception onto the rule, and then relied upon the damage to Lam’s automobile, characterizing it as a trespass, to sidestep the lack of a personal injury.

(a) As a result, Lam was wrongly decided for three reasons: (1) Lam improperly cited the holding of Littleton II as noted above and shifted its focus to whether property damage was sustained; (2) it abandoned the traditional notion of what is encompassed by the phrase “pecuniary loss resulting from an injury to the person which is not physical; such an injury to a person’s reputation,” Littleton II, supra, 259 Ga. at 666 (2) (B) (“An injury to the reputation would be such an injury.”); Phillips, supra, 305 Ga. App. at 77; Owens, supra, 227 Ga. App. at815; and (3) it wrongly applied the pecuniary loss rule. The first of these has already been discussed.

(b) Second, although the primary example of an injury to the person that is not physical has been damage to reputation, this is not an exhaustive listing. Additional possibilities are suggested in Hubbard v. Ruff, 97 Ga. App. 251, 253 (103 SE2d 134) (1958) and Hutcherson v. Durden, 113 Ga. 987, 989-990 (39 SE 495) (1901). In Hubbard, this Court construed “personal tort” as used in the inter-spousal immunity statute as “one involving or consisting in an injury to the person or to the reputation or feelings, as distinguished from an injury or damage to real or personal property.” 97 Ga. App. at 253. Similarly, Hutcherson determined that “injuries done to the person” included “all actionable injuries to the individual himself” and cited physical and bodily injury, injury to the reputation, false imprisonment, malicious arrest, and injury to one’s health, in contrast to injury done to the person’s property. 113 Ga. at 990. Yet Lam focused upon damage to Lam’s vehicle as a means for recovery for emotional distress in the absence of physical injury. Accordingly, in view of Littleton II’s requirement that a “pecuniary loss must occur as a result of a tort involving an injury to the person even though this injury may not be physical” (i.e., reputation, false imprisonment, etc.) and the companion principle that emotional distress damages may not be awarded for loss to property alone, Lam incorrectly based its decision on the damage to Lam’s vehicle.

The impact of Lam’s fixation on property damage is highlighted in its progeny. See Grizzle v. Norsworthy, 292 Ga. App. 303, 306 (664 SE2d 296) (2008); Shores v. Modern Transp. Svcs., 262 Ga. App. 293, 295 (1) (585 SE2d 664) (2003). Both Grizzle and Shores involved actions for emotional distress by train engineers following collisions with vehicles. In Grizzle, the court cited the pecuniary loss rule mentioned in Lam (“based upon an injury to property,” as opposed to “person” in Littleton II) and concluded that, because the plaintiff had no personal interest in the train or any other property, he could not recover lost income and medical expenses under the pecuniary loss rule. 292 Ga. App. at 306 (2). Likewise, in Shores, in addition to finding no physical injury, the court noted that the plaintiff “failed to show an ‘injury to property’ resulting in pecuniary loss.” 262 Ga. App. at 295 (1). As this Court noted in Jordan, “[ajlthough 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.” 230 Ga. App. at 735. See also Littleton II, supra, 259 Ga. at 667 (2) (B). What is relevant is whether the plaintiff suffered a pecuniary loss resulting from “a tort involving an injury to the person,” either physical or of the sort contemplated by Littleton II. See Harris v. Wall Tire Co., 197 Ga. App. 818 (399 SE2d 580) (1990) (recovery under pecuniary loss rule not permitted where plaintiff suffered property damage and alleged emotional distress, but no personal injury).

(c) Third, Lam wrongly applied the pecuniary loss rule by finding that the medical bills and lost wages incurred by Lam supplied the pecuniary loss for her claim. See Owens, supra, 227 Ga. App. at 816. Just as in Owens, “the only pecuniary loss [in Lam] is that incurred due to medical bills and lost time from work [Lam] allegedly incurred because of emotional distress following the incident” and was not the result of a separate tort involving an injury to Lam. 227 Ga. App. at 816. On this point, Owens is indistinguishable. However, the Lam court essentially bootstrapped Lam’s damages for emotional distress onto her claim for property damage to provide a recovery in the absence of a separate “tort involving an injury to the person.” For the reasons stated above, this conclusion was erroneous and should be overruled. To the extent Hall County Mem. Park v. Baker, 145 Ga. App. 296 (243 SE2d 689) (1978) relies upon similar logic to award damages for emotional distress in the absence of personal injury, it too should be overruled.

3. Finally, this Court does not have the authority, were it so inclined, to expand the remedies available to plaintiffs under our law. See Shores, supra, 262 Ga. App. at 296 (2) (declining to relax the impact rule); McCunney v. Clary, 259 Ga. App. 260, 261-263 (1) (576 SE2d 635) (2003). Only the Supreme Court of Georgia or the General Assembly may do that. See Lee, supra, 272 Ga. at 588; Shores, supra, 262 Ga. App. at 296 (2); McCunney, supra, 259 Ga. App. at 261-263 (1). In fact, the Supreme Court has recognized a single exception to the impact rule. See Lee, supra, 272 Ga. at 587. Presented with the opportunity to reject the impact rule, our Supreme Court specifically reaffirmed it, finding that

the benefits of an impact rule are plain in that it provides a brighter line of liability and a clear relationship between the plaintiff’s being a victim of the breach of duty and compensability to the plaintiff.

Lee, supra, 272 Ga. at 587 (II). Indeed, the court could not have been more clear when it stated that “we decline to adopt any rule which might, in effect, create a separate tort allowing recovery of damages for the negligent infliction of emotional distress.” Id. at 588 (III). No decision since has further expanded this exception, and it therefore appears the parent/child exception, applicable only when both are injured in the same accident and the child dies from her injuries, remains the lone exception to the impact rule in Georgia. See Shores, supra, 262 Ga. App. at 296 (2) (declining to relax the impact rule); McCunney, supra, 259 Ga. App. at 261-263 (1).

Accordingly, under Georgia law, an injured parent can recover for emotional distress from witnessing the injury and death of her child involved in the same event. See Lee, supra, 272 Ga. at 588. Conversely, a parent cannot recover for emotional distress from the death of a child during delivery. See Littleton LV, supra, 261 Ga. at 664. Nor can a parent recover for emotional distress from witnessing the nonfatal injury of his spouse and his children involved in the same event. See McCunney, supra, 259 Ga. App. at 261-263 (1). Similarly, a relative cannot recover for emotional distress from witnessing the nonfatal injury of a relative involved in the same event. See Bennett v. Moore, 312 Ga. App. 445, 458 (3) (718 SE2d 311) (2011). It is clear that the plaintiff’s claim is not included within the narrow Lee exception, and we are not authorized to create such a remedy, as was done in Lam. See Lee, supra, 272 Ga. at 588; Shores, supra, 262 Ga. App. at 296 (2); McCunney, supra, 259 Ga. App. at 261-263 (1).

Decided July 16, 2014 —

McMickle, Kurey & Branch, Scott W. McMickle, Stephanie F. Brown, Weinberg, Wheeler, Hudgins, Gunn & Dial, John K. Train IV, Robert P. Marcovitch, Joshua S. Wood, for appellants.

Katherine L. McArthur, Caleb F. Walker, for appellees.

In closing, the ruling issued by the majority represents a drastic expansion of the pecuniary loss rule above and beyond any prior limitation by the courts of this state — so much so, in fact, that the impact of the decision is to render meaningless the impact rule. Indeed, of what use is the impact rule if it can be routinely circumvented under the majority’s enlargement of the pecuniary loss rule? As our Supreme Court noted in Lee, “it would be imprudent to abandon over a hundred years of Georgia precedent” to sacrifice the impact rule. 272 Ga. at 588. Yet that is precisely what has been accomplished today.

In view of the foregoing, I do not find that the plaintiff is entitled to recover for emotional distress from witnessing the death of his friend and its aftermath under any existing theory of Georgia law, specifically including the pecuniary loss rule. I further believe that we should overrule Lam inasmuch as it is in conflict with Owens, a controlling precedent of this Court, and is inconsistent with Littleton II, Lee, and our long-standing adherence to the impact rule. We should not further melt down the law in this area. As a result, the judgment of the trial court should be reversed and remanded with direction to enter partial summary judgment in favor of the defendants on the issue of recovery under the pecuniary loss rule.

       OCGA § 9-11-56 (c).

       See Bank of North Ga. v. Windermere Dev., 316 Ga. App. 33, 34 (728 SE2d 714) (2012).

        Lowry v. Cochran, 305 Ga. App. 240, 241 (699 SE2d 325) (2010) (citation omitted).

       248 Ga. App. 134 (546 SE2d 283) (2001).

       (Emphasis supplied.) Id. at 138 (2). While the result in Lam is correct, the dissent appropriately argues that a recovery for emotional distress cannot be based solely on an injury to property. Therefore, to the extent that language in Lam suggests otherwise, such language should be disapproved. See id. at 138 (2) (noting the damage to Lam’s personal property as support for her pecuniary loss — in addition to her hospital and other treatment expenses arising from her psychological injury).

       In light of the presence of an identifiable psychological injury to McDade, the present case is distinct from Owens v. Gateway Mgmt. Co., 227 Ga. App. 815 (490 SE2d 501) (1997). In that case, the plaintiff experienced fear due to being held at gunpoint, and the Court held that this fear alone was, in essence, emotional distress — not a separate psychological injury. In such a situation, the Court correctly held that, absent some physical or nonphysical injury to the plaintiff’s person, she could not recover emotional distress damages. But for similar reasons, the dissent is correct that Hall County Mem. Park, Inc. v. Baker, 145 Ga. App. 296 (243 SE2d 689) (1978), was wrongly decided. In that case, the plaintiff suffered no separate injury other than the grief caused by the improper burial location of her deceased husband. In essence, her only alleged injury was her emotional distress, which is an element of damages but not a separate injury for purposes of the pecuniary loss rule. Accordingly, to the extent that Baker holds otherwise, it should be overruled.

       Cf. Travis Pruitt & Assocs., P.C. v. Hooper, 277 Ga. App. 1, 5 (2) (625 SE2d 445) (2005) (“A claim for emotional distress damages caused by negligence must be supported by evidence that the plaintiff suffered an impact resulting in physical injury or pecuniary loss resulting from an injury to the person.”).

       Furthermore, I agree with the parties’ observation that the plaintiff cannot recover, pursuant to the impact rule, damages for any emotional distress resulting from his witnessing the death of his friend and its aftermath. See, e.g., Lee v. State Farm Mut. Ins. Co., 272 Ga. 583 (533 SE2d 82) (2000); Littleton II, supra, 259 Ga. at 666-667.

       In this regard, Barrow v. Ga. Lightweight Aggregate Co., 103 Ga. App. 704, 709 (120 SE2d 636) (1961) is not applicable. In Barrow, this Court permitted a landowner to seek damages for emotional distress resulting from blasting operations on a neighboring property. Id. The landowner claimed to suffer damage to his residence and “great and grievous discomfort, annoyance, and anxiety.” Id. at 708. This Court concluded that the blasting operations constituted a trespass, although there is no mention of pecuniary loss. Id. In the more than 50 years since it was decided, Barrow has been cited for this proposition by Georgia courts twice. See Littleton II, supra, 259 Ga. at 666 (2) (B); Lam, supra, 248 Ga. App. at 137. Littleton II overruled Barrow to the extent that it “may stand for the proposition that a plaintiff who has suffered a trespass may recover for emotional distress,” but agreed that it could support damages for “mental injury flowing from a trespass.” Littleton II, supra, 259 Ga. at 667 (2) (B). In essence, then, this Court held that one cannot recover damages for emotional distress by virtue of the trespass itself; it must be accompanied by injury to the person. In fact, Littleton II reiterated this idea, holding that a “pecuniary loss must occur as a result of a tort involving an injury to the person.” Littleton II, supra, 259 Ga. at 667 (2) (B). See also Owens, supra, 227 Ga. App. at 816.

       See OB-GYN Assoc. of Albany v. Littleton, 261 Ga. 664 (410 SE2d 121) (1991) ("Littleton IV").

       Importantly, Owens is binding precedent under our rules. See Court of Appeals Rule 33 (a).

       Correctly stated, Littleton II held that “for a pecuniary loss to support a claim for damages for emotional distress, the pecuniary loss must occur as a result of a tort involving an injury to the person even though this injury may not be physical.” 259 Ga. at 667 (2) (B) (emphasis supplied).

       Judge McFadden’s special concurrence’s argument that Lam should be followed as controlling authority because “the Supreme Court previously declined to review [it] on certiorari” is unsupportable. See Ezor v. Thompson, 241 Ga. App. 275, 277 (1) (526 SE2d 609) (1999) (“[T]he denial of a writ of certiorari shall not be taken as an adjudication that the decision or judgment of the Court of Appeals is correct.”) (punctuation omitted).

       See Southern Star Lightning Rod Co. v. Duvall, 64 Ga. 263, 269 (1879) (Bleckley, J.).


author: MCFADDEN, Judge. ANDREWS, Presiding Judge,

text:
    A14A0215.
    GEORGIA RIVER NETWORK et al. v. TURNER et al. GEORGIA RIVER NETWORK et al. v. GRADY COUNTY BOARD OF COMMISSIONERS et al. TURNER v. GRADY COUNTY BOARD OF COMMISSIONERS et al. GRADY COUNTY BOARD OF COMMISSIONERS v. GEORGIA RIVER NETWORK et al.
    A14A0272.
    A14A0273.
    A14A0274.
    (762 SE2d 123)
   MCFADDEN, Judge.

These appeals and cross-appeals arise from a petition for administrative hearing Georgia River Network and American Rivers (the “River Groups”) filed to challenge a buffer variance the Director of the Environmental Protection Division (“EPD”) of the Georgia Department of Natural Resources (“DNR”) (the “Director”) issued to the Grady County Board of Commissioners (the “County”) under Georgia’s Erosion and Sedimentation Act in connection with the County’s plans to construct a 960-acre fishing lake. The buffer variance permits the County to encroach upon the 25-foot vegetative buffer the Erosion and Sedimentation Act requires adjacent to streams on the site. The Administrative Law Judge (“ALJ”), after rejecting two challenges to her jurisdiction, reversed the variance, concluding that it failed to account for buffers required for wetlands on the site. In parallel proceedings for judicial review, the Superior Court of Fulton County (the “Fulton Court”) and the Superior Court of Grady County (the “Grady Court”) (collectively, the “Superior Courts”) issued orders reversing the ALJ’s decision.

In Case Nos. A14A0215 and A14A0272, the River Groups appeal from the Fulton Court and Grady Court orders, respectively, arguing that the Superior Courts erred in finding that the ALJ lacked jurisdiction and in concluding as to the merits that the Erosion and Sedimentation Act requires a 25-foot buffer only along the banks of state waters with vegetation wrested by normal stream flow or wave action. In Case Nos. A14A0273 and A14A0274, the Director and County, respectively, cross-appeal the Grady Court order. Although they do not contest the reversal of the ALJ decision, they argue that the Grady Court erred by finding “no obvious error” in the ALJ’s standing determination.

We conclude that the River Groups challenged an “order or action” of the Director; that the River Groups had standing; and that the Superior Courts erred in determining that the buffer requirement applies only to state waters with wrested vegetation. We therefore reverse the superior courts’ judgments.

1. Statutory background and procedural history.

This court conducts a de novo review of claimed errors of law in a superior court’s appellate review of an ALJ’s decision. Upper Chattahoochee Riverkeeper v. Forsyth County, 318 Ga. App. 499, 501-502 (734 SE2d 242) (2012).

We begin with an overview of the statutory background and a discussion of the procedural history in these cases. The purpose of the Erosion and Sedimentation Act is set out as follows:

It is found that soil erosion and sediment deposition onto lands and into waters within the watersheds of this state are occurring as a result of widespread failure to apply proper soil erosion and sedimentation control practices in land clearing, soil movement, and construction activities and that such erosion and sediment deposition result in pollution of state waters and damage to domestic, agricultural, recreational, fish and wildlife, and other resource uses. It is therefore declared to be the policy of this state and the intent of this chapter to strengthen and extend the present erosion and sediment control activities and programs of this state and to provide for the establishment and implementation of a state-wide comprehensive soil erosion and sediment control program to conserve and protect the land, water, air, and other resources of this state.

OCGA § 12-7-2. The Erosion and Sedimentation Act provides that land-disturbing activities must conform with “best management practices.” OCGA § 12-7-6 (b). One of these practices is set forth in OCGA § 12-7-6 (b) (15), which states that “[t]here is established a 25[-]foot buffer along the banks of all state waters, as measured horizontally from the point where vegetation has been wrested by normal stream flow or wave action” unless one of six exceptions applies, including “[w]here the director determines to allow a variance that is at least as protective of natural resources and the environment.” No land-disturbing activities may be conducted within a buffer “except as otherwise provided by this paragraph.” OCGA § 12-7-6 (b) (15) (B). “State waters” include

any and all rivers, streams, creeks, branches, lakes, reservoirs, ponds, drainage systems, springs, wells, and other bodies of surface or subsurface water, natural or artificial, lying within or forming a part of the boundaries of the state, which are not entirely confined and retained completely upon the property of a single individual, partnership, or corporation.

OCGA § 12-7-3 (16).

On May 28, 2010, the United States Army Corps of Engineers issued a permit to the County pursuant to Section 404 of the Federal Clean Water Act, authorizing construction of a 960-acre fishing lake. The permit allows the County to impound Tired Creek, a tributary of the Upper Ochlockonee River, by constructing a 3,000-foot long, 65-foot tall, and 450-foot wide dam. The construction of the dam and lake will destroy at least 129 acres of wetlands and over nine miles of streams.

The County also needed a buffer variance to proceed with its project. On April 30, 2012, the County submitted a revised application to the EPD for a buffer variance to permit the disturbance and loss of stream buffers at the site. In comments to the EPD, the River Groups maintained that the County’s application was deficient because it did not address impacts to buffers along wetlands on the site. The River Groups asserted that wetlands are “state waters” protected by buffers and that impacts to wetlands on the site would require a buffer variance and appropriate mitigation. On July 6, 2012, the Director granted the County’s application for a variance. The EPD’s Nonpoint Source Program Manager thereafter sent a letter to the River Groups in which he agreed that wetlands are state waters but asserted that “[w]etlands are features that usually do not require a buffer due to the lack of ‘wrested vegetation.’ Therefore, those impacts are not included in the buffer variance request.”

The River Groups then filed a petition for hearing in the Office of State Administrative Hearings against the Director seeking to invalidate the County’s buffer variance on the ground that it failed to account for and authorize impacts to wetlands. The County was permitted to intervene. The Director filed a motion to dismiss, later adopted by the County, asserting that the River Groups failed to identify an “order or action” they were challenging within the meaning of OCGA § 12-2-2 (c) (2) (A). The County filed a motion to dismiss, asserting that River Groups lacked standing under OCGA § 12-2-2 (c) (2) (A) because they were not aggrieved or adversely affected by the variance. The River Groups and the County filed cross-motions for summary determination. In his response to the River Groups’ motion for summary determination, the Director argued that the River Groups were not aggrieved or adversely affected by the variance.

The ALJ entered an order denying the motions to dismiss; granting the River Groups’ motion for summary determination; and reversing the buffer variance. The ALJ concluded that “applying the plain and unambiguous meaning of the statute, a buffer is required for all state waters, including wetlands.” The Director filed a petition for judicial review in the Fulton Court, and the County filed a petition for judicial review in the Grady Court. The County was permitted to intervene in the Fulton Court, and the Director was permitted to submit briefs in the Grady Court.

The Fulton Court reversed the ALJ’s decision, concluding that the River Groups failed to challenge an “order or action” of the Director; the River Groups lacked standing; and the Director’s application of the Erosion and Sedimentation Act was consistent with its plain terms. The Grady Court subsequently entered an order reaching the same conclusions and reversing the ALJ’s decision, except that it found “no obvious error” in the ALJ’s conclusion as to standing. We granted the River Groups’ applications for discretionary appeal from the Superior Courts’ orders, and these appeals and cross-appeals followed.

2. Jurisdiction.

We first address the River Groups’ enumerations of error pertaining to the ALJ’s subject matter jurisdiction because if subject matter jurisdiction was lacking, neither the ALJ nor the Superior Courts were authorized to enter a judgment on the merits. See First Christ Holiness Church v. Owens Temple First Christ Holiness Church, 282 Ga. 883, 885 (655 SE2d 605) (2008).

(a) “Order or action.”

The River Groups contend that the Superior Courts erred in concluding that the ALJ lacked jurisdiction over their petition because the petition challenged the Director’s alleged failure to act, not an “order or action” of the Director. We conclude that the Superior Courts erred in reversing the ALJ on this issue.

The Erosion and Sedimentation Act provides that “[a] 11 hearings on and review of contested matters, orders, or permits issued by or filed against the director . . . shall be provided and conducted in accordance with subsection (c) of Code Section 12-2-2.” OCGA § 12-7-16. In turn, OCGA § 12-2-2 (c) (2) (A) provides in relevant part:

Any person who is aggrieved or adversely affected by any order or action of the director shall, upon petition to the director within 30 days after the issuance of such order or the taking of such action, have a right to a hearing before an administrative law judge. . . .

As the ALJ concluded, the River Groups’ petition challenged a specific action, the Director’s issuance of a variance. The petition asserts that the variance is invalid and in violation of the Erosion and Sedimentation Act because the Director allowed the County to submit an application that failed to address alleged wetland buffers at the site and subsequently issued a variance failing to account for those buffers. At bottom, the River Groups are challenging the validity of the variance on the theory that both the application and the Director’s consideration of it were incomplete. The River Groups’ challenge to the variance is akin to the permit challenges in other environmental cases we have entertained that were likewise based in whole or in part on the regulating authority’s alleged incomplete consideration or regulation of a proposed project. See Longleaf Energy Assoc., LLC v. Friends of the Chattahoochee, 298 Ga. App. 753, 756-760 (2) (681 SE2d 203) (2009) (considering and rejecting claim that EPD permit for construction of coal-fired electric plant was invalid because it failed to limit carbon dioxide gas emissions); Coastal Marshlands Protection Committee v. Center for a Sustainable Coast, 286 Ga. App. 518, 521-529 (2) (649 SE2d 619) (2007), aff’d, Center for a Sustainable Coast v. Coastal Marshlands Protection Committee, 284 Ga. 736 (670 SE2d 429) (2008) (considering and rejecting petitioners’ claim that permit authorizing construction of marina and dock facilities over coastal marshlands was invalid because it failed to regulate permit-tee’s adjoining upland development).

The Superior Courts reasoned that the River Groups were challenging the Director’s inaction because the Director had no duty under the Erosion and Sedimentation Act to consider impacts to buffers at the site of the project if the application did not request permission to encroach on them or to require the County to address additional buffers in its application. The River Groups’ petition cited to and relied upon the regulation setting forth the buffer variance process, which, in fact, contemplates that a variance application will address all of the buffer impacts associated with a proposed project. Further, the County conceded before the ALJ that during the buffer variance application process, the Director required it to revise its application to increase the number of linear feet of streams and associated buffers that would be impacted by the project. While the parties may dispute whether the buffer provision in the Erosion and Sedimentation Act and the variance regulation apply to wetlands, those issues relate to the merits of the River Groups’ petition. Meritorious or not, the petition invoked the ALJ’s jurisdiction to review the “orders or actions” of the Director.

(b) Standing.

The River Groups argue that the Fulton Court erred in concluding that the River Groups lacked standing because their members are notaggrievedoradverselyaffectedwithinthemeaningofOCGA § 12-2-2 (c) (2) (A). Conversely, the Director and the County argue that the Grady Court erred in failing to reverse the ALJ’s conclusion that the River Groups had standing.

OCGA § 12-2-2 (c) (3) (A) explains that
[p] ersons are “aggrieved or adversely affected,” [for purposes of OCGA § 12-2-2 (c) (2) (A)]... where the challenged action has caused or will cause them injury in fact and where the injury is to an interest within the zone of interests to be protected or regulated by the statutes that the director is empowered to administer and enforce.

We look to United States Supreme Court precedent concerning Article III standing for guidance in analyzing the River Groups’ standing under OCGA § 12-2-2 (c) (2) (A) and (c) (3) (A). See Center for a Sustainable Coast v. Turner, 324 Ga. App. 762, 764 (751 SE2d 555) (2013). The United States Supreme Court has explained that

to satisfy Article Ill’s standing requirements, a plaintiff must show (1) it has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

(Citations and punctuation omitted.) Friends of the Earth v. Laidlaw Environmental Svcs. (TOC), 528 U. S. 167, 180-181 (II) (A) (120 SCt 693, 145 LE2d 610) (2000). “Environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.” (Citation and punctuation omitted.) Turner, supra, 324 Ga. App. at 765. The issues in dispute here are whether the River Groups can show that their members’ alleged injuries are fairly traceable to the buffer variance and redressable in this action.

In his response to the River Groups’ motion for summary determination, the Director requested that the ALJ make a determination on the issue of standing in accordance with OCGA § 12-2-2 (c) (3) (A), which states in part:

... In the event the director asserts in response to the petition before the administrative law judge that the petitioner is not aggrieved or adversely affected, the administrative law judge shall take evidence and hear arguments on this issue and thereafter make a ruling on this issue before continuing with the hearing. The burden of going forward with evidence on this issue shall rest with the petitioner.

The statute contemplates an evidentiary hearing on the issue of standing. See Smart Growth Forsyth County v. Couch, Docket No. OSAH-BNR-ES-0707202-60-Howells, Order on Standing, March 2, 2007,2007 WL 828306, at *2 (ALJ conducted hearing on standing and heard testimony from petitioners’ witnesses). During oral argument on the parties’ motions, the Director’s counsel, rather than requesting that an evidentiary hearing take place, stated that because the Director had invoked OCGA § 12-2-2 (c) (3) (A), the River Groups were required to come forward with evidence to establish causation in support of their motion for summary determination. The Director’s counsel argued that the River Groups failed to do so. The River Groups, however, already had presented evidence relevant to standing, as they attached several affidavits to their petition, including affidavits from two individuals who are members of both organizations and live in close proximity to the proposed lake. Neither the Director nor the County disputed the veracity of these affidavits. Thus, the issue before the ALJ was whether those affidavits are legally sufficient to establish the individuals’ standing. We conclude that they are.

One of the affiants stated that she has enjoyed walking along Tired Creek and its tributaries, has canoed on the Ochlockonee River downstream from the proposed lake, and hopes to continue these activities. She believes that as a result of the buffer variance, the waters downstream will be less desirable for viewing, recreation, and other uses. The other affiant stated that she enjoys walking along the waters downstream from the site and is afraid that the destruction of the buffers will negatively impact the water quality downstream. She is also concerned the variance will negatively impact migratory birds and destroy trails animals use when seeking food and water. The affiants stated that their use and enjoyment of waters on the site and downstream has been and will continue to be significantly and negatively affected by the variance.

To establish standing, the River Groups must show that the injuries described by the members are “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” (Citation omitted.) Bennett v. Spear, 520 U. S. 154, 167 (III) (A) (117 SCt 1154, 137 LE2d 281) (1997). Here, it is undisputed that the buffers required by the Erosion and Sedimentation Act at the site could not be disturbed and the lake project could not go forward without both the Section 404 permit and the buffer variance. As such, even if the Section 404 permit is also a cause of the damage to and loss of alleged wetland buffers, the loss is nonetheless fairly traceable to the buffer variance. See Mattaponi Indian Tribe v. Commonwealth, Dept. of Environmental Quality, 261 Va. 366, 375-378 (541 SE2d 920) (2001) (petitioners had standing to challenge state permit authorizing reservoir for public water supply although project also would require federal Section 404 permit; state permit protected separate interests and could cause injury). In concluding that the River Groups failed to establish that the buffer variance, rather than the Section 404 permit, caused their members’ injuries, the Fulton Court relied on OCGA § 12-7-6 (b) (15) (C) (i), which requires that the Board of Natural Resources adopt rules with specific criteria for the grant or denial of a variance and states that the

rules shall provide, at a minimum, that the director shall consider granting a variance in the following circumstances: (i) Where a proposed land-disturbing activity within the buffer would require the landowner to acquire a [Section 404] permit,.. . and the Corps of Engineers has approved a mitigation plan to be implemented as a condition of such a permit.

The applicable regulation allows a variance in this circumstance. Ga. Comp. R. & Regs. r. 391-3-7-.05 (2) (h). While the statute and regulation establish that a variance may be available when a Section 404 permit has been issued and is subject to a mitigation plan, a variance is not a foregone conclusion. Rather, a detailed application is still required, and the Director must consider various factors in deciding whether to grant it. See Ga. Comp. R. & Regs. r. 391-3-7-.05 (3)-(5).

We also disagree with the Fulton Court’s conclusion that the permanent loss of wetland buffers due to flooding would be inconsequential since the wetlands they protect will be destroyed by flooding. It is undisputed that the County was required to apply for a buffer variance in connection with the inundation and permanent loss of streams and their buffers at the lake site. That the County was required to do so is evidence that permanent buffer loss in connection with a project like the County’s implicates the interests protected by the Erosion and Sedimentation Act.

Finally, we reject the County’s argument that the River Groups cannot establish redressability. The County’s reliance on our decision in Turner, supra, is unavailing. In that case, an environmental group challenged a consent order the Director entered into with a property owner after discovering that the property owner had constructed a bulkhead in a salt water marsh area without first requesting a buffer variance. 324 Ga. App. at 762-763. We held that the environmental group could not establish that the relief requested would redress its injuries. Id. at 768. We reasoned that if the ALJ issued an order invalidating the consent order, the bulkhead would remain in place. Id. We also concluded that the ALJ could not require the Director to order removal of the bulkhead because such a requirement would amount to improper interference with an agency’s exercise of its discretionary enforcement authority. Id. The relief requested here, reversal or invalidation of the variance, does not implicate the Director’s enforcement authority. Further, an ALJ possesses authority to reverse the Director’s decision on a variance application if the decision does not comport with the requirements of the Erosion and Sedimentation Act and the variance regulation. See The Sembler Company v. Environmental Protection Div., Dept. of Natural Resources, Docket No. OSAH-DNR-ES-02-04135-60-SEP, Final Decision, March 18, 2002, 2002 WL 34125519 (reversing denial of buffer variance application).

For these reasons, we reject the Director’s and County’s arguments that the Grady Court erred by failing to reject the ALJ’s determination that the River Groups had standing.

3. Buffer requirement.

Finally, the River Groups contend that the Superior Courts erred in concluding that under the plain statutory language, buffers exist only along the banks of state waters where vegetation has been wrested by normal stream flow or wave action. We agree.

As this case involves a matter of statutory construction, we must “look diligently for the intention of the General Assembly and . . . follow the literal language of the statute unless it produces contradiction, absurdity, or such an inconvenience as to insure that the legislature meant something else.” Judicial Council of Ga. v. Brown & Gallo, 288 Ga. 294, 296-297 (702 SE2d 894) (2010) (citation and punctuation omitted). See also OCGA § 1-3-1 (a). With these principles in mind, we conclude that the Superior Courts erred by determining that the 25-foot buffer requirement of the Erosion and Sedimentation Act does not apply unless the state waters at issue have banks with wrested vegetation.

As detailed above, OCGA § 12-7-6 (b) (15) (A) establishes “a 25[-]foot buffer along the banks of all state waters.” “State waters” is a defined term, and the definition is broad. “State waters” includes

any and all rivers, streams, creeks, branches, lakes, reservoirs, ponds, drainage systems, springs, wells, and other bodies of surface or subsurface water, natural or artificial, lying within or forming a part of the boundaries of the state, which are not entirely confined and retained completely upon the property of a single individual, partnership, or corporation.

OCGA § 12-7-3 (16). That broad definition of “state waters” is narrowed, for purposes of the applicability of the 25-foot buffer requirement in OCGA § 12-7-6 (b) (15) (A), by six statutory exceptions not applicable here; the requirement otherwise applies to “all state waters.” One of these exceptions is for a category of waters to which the General Assembly deemed a buffer inappropriate (ephemeral streams). OCGA § 12-7-6 (b) (15) (A) (v). Two others give the Director limited discretion to grant variances. OCGA § 12-7-6 (b) (15) (A) (ii), (iii). In a subordinate clause, the statute goes on to direct that the buffer is to be “measured horizontally from the point where vegetation has been wrested by normal stream flow or wave action.” The question before us is whether that direction entails a seventh exception.

We hold that it does not. It merely specifies the location of the buffer — alongside the “bank” or the “margin of the watercourse,” Webster’s New International Dictionary (1954) — and a method for measuring it. To treat that language as a seventh exception, as the Superior Courts did, would be to hold that no buffer is required along the banks of streams, rivers, and lakes that have rocky or sandy shores where lines of wrested vegetation cannot be found. This interpretation would hold that buffer protection is afforded in fits and starts, should the line of wrested vegetation not be continuous, an absurdity not intended by the legislature. See Judicial Council of Ga., supra, 288 Ga. at 296-297.

The wrested vegetation measurement language was added to the statute in 1994. Formerly, the statute had provided that the buffer was “measured from the stream banks.” In 1994, the General Assembly amended that language to provide that the buffer was measured “from the point where vegetation has been wrested.” The 1994 version of the statute listed three exceptions to the buffer requirement. Had the General Assembly intended to except state waters without wrested vegetation from the buffer requirement, it would have said so expressly in the list of exceptions, not by implication in a subordinate clause that addresses measurements.

The statute is internally inconsistent. As the dissent says, it does not set out an alternative to its provision that buffers are to be measured from wrested vegetation. On the other hand it sets out explicitly the six exceptions to the rule establishing a buffer along the banks of all state waters — each narrower than the purported exception for state waters without wrested vegetation. It is our duty to resolve that inconsistency so as to give effect to the intent of the General Assembly and to avoid absurd results.

Here the General Assembly stated its intent: “to strengthen and extend the present erosion and sediment control activities and programs of this state” and “[to] protect the land, water, air, and other resources of this state.” OCGA § 12-7-2. See also MarkMcCarty et al., Peach Sheets: Conservation and Natural Resources, 12 Ga. St. U. L. Rev. 39, 47 (1995) (reporting on another change made to the Erosion and Sedimentation Act the year after the “wrested vegetation” language was adopted: “The Senate committee substitute made a blanket change of terms from ‘streams’ to ‘waters,’ and this change was ultimately adopted in the Act. Environmental lobbyists and the EPD encouraged this change to broaden the scope of regulation to waters that do not flow, such as lakes and marshlands.”) (footnotes omitted). The Superior Courts erred in construing the statute in a manner contrary to the General Assembly’s stated intent.

Judgments reversed.

Barnes, R J., Doyle, P. J., and Boggs, J., concur. Andrews, P. J., Ray and Branch, JJ, dissent.

ANDREWS, Presiding Judge,

concurring in part and dissenting in part.

I concur fully in Division 2 of the majority opinion. I respectfully dissent from Division 3, however. The majority’s interpretation of OCGA § 12-7-6 (h) (15) (A) (the “buffer provision”) rewrites that statutory provision, and its assertion that doing so is necessary to effectuate the General Assembly’s intent and to avoid an unreasonable result is conclusory and speculative.

In cases involving questions of statutory interpretation, we are guided by the following principles:

It is elementary that in all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly. In so doing, the ordinary signification shall be applied to all words. Where the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly. . . . Moreover, Georgia law provides that the express mention of one thing in an act or statute implies the exclusion of all other things.

(Punctuation and footnotes omitted.) Chase v. State, 285 Ga. 693, 695 (2) (681 SE2d 116) (2009).

In relevant part, OCGA § 12-7-6 (b) (15) (A) states that “[t]here is established a 25[-]foot buffer along the banks of all state waters, as measured horizontally from the point where vegetation has been wrested by normal stream flow or wave action, except” when one of six exceptions applies. The wrested vegetation phrase, set off by commas between “state waters” and “except,” is a participial phrase that modifies the term “buffer.” The wrested vegetation phrase directs that the 25-foot buffer along the banks of state waters is “measured horizontally from the point where vegetation has been wrested by normal stream flow or wave action.” OCGA § 12-7-6 (b) (15) (A). Applying its ordinary meaning, “wrest” means “[t]o extract by or as if by force, twisting, or persistent effort.” The American Heritage Dictionary of the English Language at 2060 (3d ed. 1992). When normal stream flow or wave action is absent or lacks sufficient force to wrest the vegetation along the banks of state waters, the Erosion and Sedimentation Act provides no means of measuring a buffer. I would hold that the most natural and reasonable construction of the buffer provision is that under such circumstances, no buffer exists. This interpretation is reinforced by the buffer provision’s description of buffers as located along the “banks” of state waters. When used in reference to a body of water, “bank” most commonly means “the rising ground bordering a lake, river, or sea,” Merriam Webster’s Collegiate Dictionary at 96 (11th ed. 2008) or “[t]he slope of land adjoining a body of water, especially adjoining a river, lake, or channel.” The American Heritage Dictionary, supra, at 145. Even if they are not in and of themselves determinative of the buffer provision’s meaning, these definitions are evidence that the General Assembly contemplated that buffers would exist along those bodies of water, such as rivers and lakes, that are characterized by water movement sufficient to create a line of wrested vegetation.

The majority agrees that the wrested vegetation phrase sets forth the method for measuring the buffer yet concludes that a buffer exists adjacent to all state waters even when there is no line of wrested vegetation from which it may be measured. In reaching this conclusion, the majority is impliedly holding that other means of measuring a buffer may be used if wrested vegetation is absent. But if the General Assembly had intended that other methods of measuring a buffer could apply or that the EPD should develop them, it would have said so. The express mention of one method of measuring the buffer implies the exclusion of other methods under the principle of expressio unius est exclusio alterius. See Morton v. Bell, 264 Ga. 832, 833 (452 SE2d 103) (1995). The majority, too, relies on this principle of statutory construction, stating that the Superior Courts’ interpretation of the buffer provision violates the principle by adding a new, seventh exception to the circumstances in which a buffer is required. I find this conclusion unpersuasive. A determination that state waters that do not have banks with wrested vegetation do not fall within the scope of the buffer requirement in the first place is not tantamount to creating a new statutory exception.

The majority rewrites the buffer provision because it concludes that doing so is necessary to effectuate the intent of the General Assembly and to avoid unreasonable results. The majority states that under the Superior Courts’ interpretation of the buffer provision, no buffer would be required “along the banks of streams, rivers, and lakes that have rocky or sandy shores where lines of wrested vegetation cannot be found” and that an absurd result would ensue if, therefore, buffer protection applied in “fits and starts.” The majority does not explain, however, why it would be unreasonable for the General Assembly to conclude that a vegetative buffer is not necessary where there is no vegetation along the water banks to begin with. Nor does the majority hazard an explanation as to why the General Assembly could not have reasonably concluded that a buffer should not be required where, as may occur with wetlands, there is a continuous growth of vegetation from the upland into the waters.

The scope of the buffer provision may not be as wide as the River Groups and the majority believe it should be, but it is nonetheless broadly drawn to apply to the banks of any “state waters,” so long as the criteria of the wrested vegetation phrase are satisfied. The majority offers no compelling reason for concluding that the General Assembly could not have determined that a buffer along the banks of state waters with wrested vegetation together with the numerous other best management practices set forth in OCGA § 12-7-6 (b) would effectuate the purposes of the statute. While there are no doubt policy arguments in favor of a broader buffer provision, it is not our place to second-guess the General Assembly’s judgment in this regard or to rewrite the buffer provision to achieve what we believe is a more desirable level of environmental protection. See Allen v. Wright, 282 Ga. 9, 12 (1) (644 SE2d 814) (2007) (“[U]nder our system of separation of powers this Court does not have the authority to rewrite statutes.”) (citation and punctuation omitted).

I am authorized to state that Judge Ray and Judge Branch join in this dissent.

Decided July 16, 2014 —

Case No. A14A0215

William W. Sapp, Nathaniel H. Hunt, for appellants.

Samuel S. Olens, Attorney General, James D. Coots, Senior Assistant Attorney General, Kevin S. Cauley, Cook, Noell, Tolley & Bates, Edward D. Tolley, Devin H. Smith, for appellees.

Donald D. J. Stack, Jennifer R. Culler, Juliet Cohen, King & Spalding, Patricia T. Barmeyer, amici curiae.

Case No. A14A0272

William W. Sapp, Nathaniel H. Hunt, for appellants.

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, James D. Coots, Senior Assistant Attorney General, JohnE. Hennelly, Assistant Attorney General, Kevin S. Cauley, Cook, Noell, Tolley & Bates, Edward D. Tolley, Devin H. Smith, for appellees.

King & Spalding, Patricia T. Barmeyer, amici curiae.

Case No. A14A0273

Samuel S. Olens, Attorney General, Isaac Byrd, Deputy Attorney General, James D. Coots, Senior Assistant Attorney General, JohnE. Hennelly, Assistant Attorney General, Neis Peterson, Solicitor-General, for appellant.

William W. Sapp, Nathaniel H. Hunt, for appellees.

Case No. A14A0274

Kevin S. Cauley, Cook, Noell, Tolley & Bates, Edward D. Tolley, Devin H. Smith, for appellant.

William W. Sapp, Nathaniel H. Hunt, for appellees.

       For example, the regulation states that a variance application must include a “[s]ite map that includes locations of all state waters, wetlands, floodplain boundaries and other natural features, as determined by field survey,” a “[d] escription of the project, with details of the buffer disturbance, including estimated length of time for the disturbance and justification for why the disturbance is necessary,” and “calculation of the total area and length of buffer disturbance.” Ga. Comp. R. & Regs. r. 391-3-7-.05 (2) (k) (3) (a), (d), (e). Further, in reviewing a variance application, the Director must consider, inter alia, the “location and extent of buffer intrusion.” Ga. Comp. R. & Regs. r. 391-3-7-.05 (2) (k) (5) (c).

       We disagree with the Director to the extent he argues that a petitioner must establish standing at such a hearing with “undisputed credible evidence.” See Bd. of Regents of the Univ. System of Ga. v. Oglesby, 264 Ga. App. 602, 605 (1) (591 SE2d 417) (2003) (when trial court makes determinations of fact when ruling on motion to dismiss on jurisdictional grounds, “[i]ts evaluation rests on where the preponderance of evidence lies, not necessarily on whether the issue may be decided as a matter of law”) (citations and punctuation omitted).

       Since the parties acquiesced in the ALJ deciding the issue of standing based on the member affidavits, we conclude that any error in failing to hold an evidentiary hearing was waived. See Davis v. Phoebe Putney Health Systems, 280 Ga. App. 505, 506 (1) (634 SE2d 452) (2006).

       The parties do not dispute that wetlands fall within the definition of “state waters” in the Erosion and Sedimentation Act. Various professional organizations and trade groups, however, have submitted an amicus brief arguing that wetlands are not “state waters.” This issue has not been fully litigated, and we need not and do not reach it here.

       There is established a 25[-]foot buffer along the banks of all state waters, as measured horizontally from the point where vegetation has been wrested by normal stream flow or wave action, except:
      (i) As provided by paragraph (16) of this subsection;
      (ii) Where the director determines to allow a variance that is at least as protective of natural resources and the environment;
      (iii) Where otherwise allowed by the director pursuant to Code Section 12-2-8;
      (iv) Where a drainage structure or a roadway drainage structure must be constructed, provided that adequate erosion control measures are incorporated in the project plans and specifications and are implemented;
      (v) Along any ephemeral stream. As used in this division, the term “ephemeral stream” means a stream:
      (I) That under normal circumstances has water flowing only during and for a short duration after pi-eeipitation events;
      (II) That has the channel located above the ground-water table year round;
      (III) For which ground water is not a source of water; and
      (IV) For which runoff from precipitation is the primary source of water flow; or
      (vi) Where shoreline stabilization is installed; provided, however, that this exception shall be limited to the construction of bulkheads and sea walls only to the extent required to prevent the erosion of the shoreline. This exception shall be limited to Lake Oconee and Lake Sinclair and shall be limited to the duration of such construction.
      Unless exempted under division (v) of this subparagraph, buffers of at least 25 feet established pursuant to Part 6 of Article 5 of Chapter 5 of this title shall remain in force unless a variance is granted by the director as provided in this paragraph.