dissenting.
This is not a case where the plaintiff claims a physical injury as a result of food poisoning, nor is it a case where the plaintiff claims to have been physically injured by the consumption of a harmful foreign object in otherwise good food. Here, the evidence is undisputed that the portion of the salad Chambley consumed was not physically contaminated or tainted by the condom found in the salad, and Chambley does not claim that she was injured by consuming the condom itself. What Chambley does claim is that she found a repugnant foreign object (a condom) in the salad, and that seeing and thinking about the condom in the salad she had been eating caused her such great emotional distress that she later became physically ill as a result of the continuing emotional distress.
These facts do not support Chambley’s cause of action because there is no evidence of an impact resulting in a physical injury that could support her claim for emotional distress damages. OB-GYN Assoc. &c. v. Littleton, 259 Ga. 663, 665-666 (386 SE2d 146) (1989); Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992). Chambley makes no allegation of malicious, wilful, or wanton conduct by the defendant, Apple Restaurants. The complaint alleges that, by serving the salad with a condom in it, Apple Restaurants was: (a) negligent as a matter of law (per se) because it violated the provisions of the Georgia Food Act (OCGA § 26-2-20 et seq.) against selling adulterated food, and (b) negligent as a matter of fact under the provisions of OCGA § 51-1-23 for knowingly or negligently selling unwholesome food. Donaldson v. Great A & P Tea Co., 186 Ga. 870 (199 SE 213) (1938). Under either allegation of negligence in the complaint, Chambley states a cause of action based on long-established principles of common law negligence. Id. at 871-879 (construing provisions of the former pure food and drug act similar to the present Georgia Food Act, and provisions of former Code § 105-1101 almost identical to the *506current provisions of OCGA § 51-1-23). See also Criswell Baking Co. v. Milligan, 77 Ga. App. 861, 871-873 (50 SE2d 136) (1948); Norris v. Pig’n Whistle Sandwich Shop, 79 Ga. App. 369, 373-374 (53 SE2d 718) (1949); Burns v. Colonial Stores, 90 Ga. App. 492 (83 SE2d 259) (1954).
“In a common law negligence action, . . . the impact which will support a claim for emotional distress must result in a physical injury.” (Punctuation omitted.) Abernathy v. City of Albany, 269 Ga. 88, 89 (495 SE2d 13) (1998), quoting OB-GYN Assoc., 259 Ga. 663, 666. Ryckeley, 261 Ga. at 828. In OB-GYN Assoc., the Supreme Court overruled the expansive impact rule stated in Christy Bros. Circus v. Turnage, 38 Ga. App. 581 (144 SE 680) (1928). In addressing the impact holding in Christy Bros., the Supreme Court stated that the plaintiff in that case “was allowed to seek damages for emotional distress resulting from the impact of a circus horse’s evacuating its bowels in her lap.” OB-GYN Assoc, 259 Ga. at 665 (2) (A). In stating its expansive version of the impact rule, Christy Bros, further held that “[a]ny unlawful touching of a person’s body, although no actual physical hurt may ensue therefrom, yet, since it violates a personal right, constitutes a physical injury to that person. [Cit.] The unlawful touching need not be direct, but may be indirect, as by the precipitation upon the body of a person of any material substance.” Id. at 581 (2). Quoting the above holding by Christy Bros., the Supreme Court overruled it and held that the holding constituted an improper expansion of the impact rule because it “reduces the requirement that there be some physical injury or at least an impact for the recovery of damages for emotional distress as a result of defendant’s conduct to an absurdity.” OB-GYN Assoc., 259 Ga. at 666 (2) (A).
No doubt, the condom hidden in the salad was a repugnant sight and the source of great emotional distress for Chambley, especially given the fear that the condom may have been soiled or contaminated. Nevertheless, the evidence is undisputed that, no matter how offensive its appearance in the salad was, the condom was tested at Chambley’s request by the State Crime Lab and was found to contain no contaminants. The condom itself was an uncontaminated foreign object in the salad, which did not impart any unwholesome physical qualities to the otherwise normal ingredients of the salad. Accordingly, Chambley cannot and does not claim that she was physically injured because she consumed food that was contaminated or unwholesome as a result of being mixed with a contaminated condom. Her sole claim is that, after seeing and thinking about the condom in the salad she was eating, she suffered great emotional distress and later became physically ill as a result of the continuing emotional distress.
On these facts, there is no evidence of any impact resulting in *507physical injury sufficient to support a claim for emotional distress damages. The only impact Chambley alleges is that she made physical contact with the salad by eating a few bites of it before discovering the condom. But even if this constituted some bodily impact, there is no evidence that this impact resulted in a physical injury. The physical injury alleged by Chambley, resulting not from the impact but stemming from the emotional distress itself, is not sufficient. Posey v. Med. Center-West, 184 Ga. App. 404, 405 (361 SE2d 505) (1987).
This case is controlled by the Supreme Court’s holding in OB-GYN Assoc. applying the Georgia impact rule in claims for damages for emotional distress in common law negligence cases. By overruling Christy Bros, in OB-GYN Assoc., the Supreme Court determined that the plaintiff in Christy Bros., who had horse manure negligently dumped in her lap, showed insufficient impact or physical injury to support a claim for emotional distress damages. Chambley has shown even less evidence of impact or physical injury than the plaintiff in Christy Bros. It follows that Chambley’s claim for emotional distress damages and her husband’s related consortium claim were properly dismissed on summary judgment by the trial court.
The majority’s contention that this case is controlled by Whited v. Atlanta Coca-Cola Bottling Co., 88 Ga. App. 241 (76 SE2d 408) (1953) is misplaced. In that case, the allegations and evidence, as construed in favor of the plaintiff, were that the plaintiff drank from a bottle of Coca-Cola containing the dead remains of a partially decomposed roach. The plaintiff alleged that the liquid he drank was putrid and unwholesome because of the decaying matter mixed with it, and that consumption of the liquid caused him to vomit and become physically ill in addition to suffering mental anguish. Id. at 242-244. Thus, the refusal to grant a nonsuit to the defendant in Whited was based on allegations and evidence that the plaintiff suffered a physical injury by the consumption of Coca-Cola contaminated with the decomposed remains of a roach. No such comparable injury was suffered by Chambley in the present case.
In the absence of any claims of wilful or wanton misconduct by the defendant, there is no reasonable basis for not applying the impact rule established in OB-GYN Assoc, to the emotional distress claim made in this food-related case. As the Supreme Court made clear in Donaldson, 186 Ga. at 871-879, allegations that a defendant has violated statutory provisions like the Georgia Food Act (OCGA § 26-2-20 et seq.) or OCGA § 51-1-23 state causes of action based on common law negligence. Common law negligence actions have traditionally limited recovery for psychological and emotional distress damages to cases where there has been a discernible physical injury. Abernathy, 269 Ga. at 88-89. Allowing purely subjective claims for *508emotional distress damages, without any physical injury to provide an objective component by which to judge the claims, would open the door to potentially fraudulent emotional distress actions of all kinds. The impact/physical injury rule is designed to safeguard against the possibility of such fraudulent claims in common law negligence cases, whether food-related or not. Accordingly, I disagree with the conclusion reached in Judge Beasley’s concurring opinion (Division 2) that the impact rule does not apply in this case.
Decided July 16, 1998. York, McRae & York, Michael D. McRae, Robert T. Monroe, for appellants. Hall, Booth, Smith & Slover, John E. Hall, Jr., Kevin P. Race, for appellee.As to Chambley’s claim based on breach of an implied warranty of merchantability, I fully concur in Judge Beasley’s dissenting opinion (Division 3) that the trial court properly granted summary judgment in favor of Apple Restaurants on this issue.