Negligent Infliction of Emotional Distress
Florida law recognizes a cause of action for the negligent infliction of emotional distress. See Champion v. Gray, 478 So. 2d 17, 18 (Fla. 1985). “[T]he elements required to allege a cause of action for negligent infliction of emotional distress: (1) the plaintiff must suffer a physical injury; (2) the plaintiff’s physical injury must be caused by the psychological trauma; (3) the plaintiff must be involved in some way in the event causing the negligent injury to another; and (4) the plaintiff must have a close personal relationship to the directly injured person.” Zell v. Meek, 665 So. 2d 1048, 1054 (Fla. 1995).
The first element of negligent infliction of emotional distress, which requires that the plaintiff must suffer a physical injury, reflects the “impact rule.” Florida is among the minority of jurisdictions that have retained the “impact rule” in negligence cases. Zell, 665 So. 2d at 1050. The “impact rule” requires that before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact.
The Impact Rule
“The reasoning behind the impact rule has generally been that emotional harm may be difficult to prove, damages are not easily defined, and the cause of such an injury can be elusive.” Elliott v. Elliott, 58 So. 3d 878, 880–81 (Fla. 1st DCA 2011) (citation omitted). A more candid explanation of “the underlying basis for the impact rule is that allowing recovery for injuries resulting from purely emotional distress would open the floodgates for fictitious or speculative claims.” Id. (quotation omitted). “Thus, the impact rule has been applied as a limitation to assure the validity of claims for emotional and psychological harm.” Id. (quotation omitted).
Consequently, “[i]n Florida, the prerequisites for recovery for negligent infliction of emotional distress differ depending on whether the plaintiff has or has not suffered a physical impact from an external force.” Willis v. Gami Golden Glades, LLC, 967 So. 2d 846, 850 (Fla. 2007) (quotation omitted). “If the plaintiff has suffered an impact, Florida courts permit recovery for emotional distress stemming from the incident during which the impact occurred, and not merely the impact itself.” Id. (quotation omitted).
“If, however, the plaintiff has not suffered an impact, the complained-of mental distress must be ‘manifested by physical injury,’ the plaintiff must be ‘involved’ in the incident by seeing, hearing, or arriving on the scene as the traumatizing event occurs, and the plaintiff must suffer the complained-of mental distress and accompanying physical impairment ‘within a short time’ of the incident.” Willis, 967 So. 2d at 850 (quotation omitted).
Physical Impact or Contact Renders the Impact Rule Inapplicable
In short, “the impact rule, is the rule of law followed in Florida applicable to cases in which the plaintiff claims mental or emotional damages but has not sustained any physical impact or contact, unless the claim falls within one of the recognized exceptions to the rule. When an impact or touching has occurred the rule has no application.” Willis, 967 So. 2d at 850 (emphasis in original). Despite Florida’s continued adherence to the “impact rule,” “for a plaintiff to have endured an impact or contact sufficient to render an action sustainable the ‘plaintiff may meet rather slight requirements.’” Willis, 967 So. 2d at 850 (quoting Zell, 665 So. 2d at 1050 n.1).
Significantly, the impact does not have to “leave an outward sign.” Zell, 665 So. 2d at 1050 n.1. “The essence of impact, then, it seems, is that the outside force or substance, no matter how large or small, visible or invisible, and no matter that the effects are not immediately deleterious, touch or enter into the plaintiff’s body.” Willis, 967 So. 2d at 850 (quotation omitted). For example, in Willis the Court held that the victim of a mugging, where the gunman pressed the gun to the victim’s temple and touched her body searching for her belongings, could recover damages for her emotional distress. Id. at 850–51.
Conversely, headaches, diabetes, sleep apnea, stress, insomnia, anxiety, loss of appetite, hair loss, and bowel trouble, “are not the sort of the discernable physical injuries” to overcome the impact rule. Elliott v. Elliott, 58 So. 3d 878, 882 (Fla. 1st DCA 2011). See also, Pipino v. Delta Air Lines, Inc., 196 F. Supp. 3d 1306, 1318 (S.D. Fla. 2016) (quotation omitted) (“[P]anic attacks are not physical injuries.” “[W]hile panic attacks may be manifested by physical symptoms, a physical symptom is not equivalent to a physical injury or illness, let alone a ‘significant discernible physical injury.’”); Ledford v. Delta Airlines, Inc., 658 F. Supp. 540, 542 (S.D. Fla. 1987) (“Temporary elevation of blood pressure not leading to further complications is not a significant and discernible injury.”).
Exceptions to the Impact Rule
Nevertheless, “the impact rule is not an inflexible command, and does yield to narrow exceptions ‘in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding application of the impact rule.’” Elliott, 58 So. 3d at 881. As the Florida Supreme Court itself has stated, “[n]otwithstanding our adherence to the [impact] rule, this Court has noted several instances where the impact rule should not preclude an otherwise viable claim.” Hagan v. Coca-Cola Bottling Co., 804 So. 2d 1234, 1237 (Fla. 2001).
For example, the Court “modified the impact rule in bystander cases by excusing the lack of a physical impact. In such cases, recovery for emotional distress would be permitted where one person suffers ‘death or significant discernible physical injury when caused by psychological trauma resulting from a negligent injury imposed on a close family member within the sensory perception of the physically injured person.’” Hagan, 804 So. 2d at 1237 (quotation omitted).
Moreover, the Florida Supreme Court has noted that there was general accord among authorities that “the impact doctrine should not be applied where emotional damages are an additional ‘parasitic’ consequence of conduct that itself is a freestanding tort apart from any emotional injury.” Kush v. Lloyd, 616 So. 2d 415, 422 (Fla. 1992) (citations omitted). Thus, the Court has “held that the impact rule does not apply to claims for intentional infliction of emotional distress, wrongful birth, negligence claims involving stillbirth, and bad faith claims against an insurance carrier.” Hagan, 804 So. 2d at 1237 (citations omitted). “The impact rule [also] does not apply to recognized intentional torts, including … defamation … and invasion of privacy.” Rowell v. Holt, 850 So. 2d 474, 478 n.1. (Fla. 2003) (internal citations omitted).
Although the impact rule still applies to negligent infliction of emotional distress, as the Supreme Court explained in Hagan, “we are unable to establish a rigid hard and fast rule that would set the parameters for recovery for psychic trauma in every case that may arise. The outer limits of this cause of action will be established by the courts of this state in the traditional manner of the common law on a case-by-case basis.” Hagan, 804 So. 2d at 1238 (quotation omitted). At this time, “there is, however, no cognizable action for simple negligence resulting in psychological trauma, alone, unless the case fits within one of the narrow exceptions to the impact rule.” Rowell, 850 So. 2d 474, 478 n.1.