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BISHOP v. FARHAT6/17/1997
eged in the original complaint, this statute only requires the trial court to determine whether 1) the new defendant received such notice of the action that it will not be prejudiced by defending on the merits, and 2) the new defendant knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against it. OCGA § 9-11-15 (c); Larson, supra at 357 (2). Where the defendant shows that one of these two elements has not been met, the burden shifts to the plaintiff to show they were met. American Transport v. Thompson, 218 Ga. App. 54, 55-56 (460 S.E.2d 298) (1995). Although the trial court must determine whether the amendment relates back, the party seeking to amend its complaint pursuant to OCGA § 9-11-15 need not seek leave of court to file its amendment unless a pre-trial order has been entered. See Larson, supra at 357.
Here, the trial court did not determine whether Safeskin
received notice of the action before the statute of limitations expired, or whether Safeskin would be prejudiced by having to defend this action on the merits. We note that because the trial court found the Bishops' delay inexcusable under § 9-11-21, it did not address their request for additional time to show that Safeskin had adequate notice of these claims. Because the trial court has not yet addressed that request, this court will not do so. The trial court's ruling is, therefore, reversed and the matter is remanded for further determination pursuant to OCGA § 9-11-15 (c).
2. In their second enumeration, the Bishops contend the trial court erred by dismissing their claims for negligent infliction of emotional distress. This enumeration is without merit. In Georgia, "the impact which will support a claim for damages for emotional distress must result in a physical injury ." OB-GYN Assoc. &c; v. Littleton, 259 Ga. 663, 666 (2) (A) (386 S.E.2d 146) (1989); see also Ford v. Whipple, 225 Ga. App. 276 (483 S.E.2d 591) (1997). We do not interpret the trial court's decision to prohibit the Bishops from recovering damages if they can show that a physical injury caused emotional distress, pain, and suffering.
Case No. A97A1114: Baxter's Appeal
3. Baxter appeals the trial court's denial of its motion for summary judgment based on the expiration of the statute of limitations. On appeal from the denial of a motion for summary judgment, we construe the evidence and all reasonable inferences from the evidence most strongly in favor of the non-movant, and review the trial court's ruling de novo under the standard set forth in Lau's Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 S.E.2d 474) (1991). A defendant seeking summary judgment who does not bear the burden of proof at trial "must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party's case." Id.
" ailure to warn of a hazard capable of producing an injury due to continued exposure constitutes a continuing tort, which `accrues' when the failure to warn is discovered by the injured plaintiff. ." Miles v. Ashland Chem. Co., 261 Ga. 726, 727 (410 S.E.2d 290) (1991). The statute of limitations does not begin to run until the victim is warned of the danger, discovers it, or should in the exercise of ordinary care have otherwise learned of it. Marbut v. PPG Indus., 148 Ga. App. 721 (252 S.E.2d 628) (1979). Bishop claims that on February 5, 1993, she suffered a severe allergic reaction to a latex glove. She and her husband filed this suit on February 3, 1995, within the two year limitations period for personal injury and the four-year period provided for loss of consortium
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