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Bauer v. North Fulton Medical Center12/16/1999
al of eye tissue nor any eye bank or its personnel requesting or participating in such removal shall be liable or responsible in any civil or criminal action for the removal or subsequent transplant of the tissue, provided that its removal was in accordance with the requirements of this subsection.
Mrs. Bauer argues that this section, by referring to civil or criminal liability, recognizes the existence of a separate unique cause of action for removal of eye tissue. This contention is inapposite to the wording of the statute, however, which creates immunity for civil or criminal actions under other areas of the law rather than creating new civil or criminal actions of its own. Moreover, if the legislature intended for OCGA § 31-23-6 to comprise a separate cause of action for tissue removal, it would have made such intention explicit as it did in OCGA § 31-23-9. Therefore, because Mrs. Bauer has no separate, unique cause of action under OCGA § 31-23-6, the trial court did not err in dismissing her claim on this ground.
Judgment affirmed in part and reversed in part and case remanded. Eldridge and Barnes, JJ., concur fully and specially.
A99A1927. BAUER et aL. v. NORTH FULTON MEDICAL CENTER, INC.
ELDRIDGE, Judge.
While I fully concur in the well reasoned majority opinion, I wish to elaborate on the damage issues raised in this appeal.
1. Plaintiff could have recovered damages for peace, happiness, and feelings under OCGA § 51-12-6 for the malicious, wilful or wanton conduct of the defendants in tortiously desecrating her husband's body; however, the majority correctly holds that such personal injury damages are barred by the two year statute of limitations. See Blanchard v. Westview Cemetery, 228 Ga. 461 (186 SE2d 92) (1971). See also Moody v. Dykes, 269 Ga. 217, 219 (2) (496 SE2d 907) (1998); Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992).
2. Whether in contract or tort involving property rights, if there exists either a breach of contract or tortious wrong and no other damages can be proven, then nominal damages would be recoverable where there has been some invasion of such property right that cannot be shown as a special damage. Weimer v. Cauble, 214 Ga. 634, 636-637 (106 SE2d 781) (1959); Williams v. Harris, 207 Ga. 576, 579 (2) (63 SE2d 386) (1951); Flanders v. Hill Aircraft & Leasing Corp., 137 Ga. App. 286, 289 (223 SE2d 482) (1976). When special damages have failed of specific proof, nominal damages can be recovered. Miller & Meier & Assoc. v. Diedrich, 174 Ga. App. 249, 254 (3) (329 SE2d 918) (1985), rev'd on other grounds 254 Ga. 734 (334 SE2d 308) (1985).
3. Where nominal damages have been recovered for a tortious wrong that has aggravating factors, punitive damages may also be recovered. OCGA § 51-12-5.1; Foster v. Sikes, 202 Ga. 122, 126 (42 SE2d 441) (1947); Horne's Pest Control Co., Inc. v. Elliott, 190 Ga. App. 351, 353 (378 SE2d 734) (1989); Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 276-277 (10) (329 SE2d 900) (1985).
I am authorized to state that Judge Barnes joins in this special concurrence.
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