Biology Versus Legality: How the Definition of Father “Impacts” Florida’s Impact Rule
A pregnant woman is involved in an incident, possibly a slip and fall or a motor vehicle accident. She suffers blunt force trauma, causing the loss of her fetus. Under Florida law, the plaintiff parents may not pursue a cause of action for the death of the fetus pursuant to Florida’s Wrongful Death Act.1 T he rationale for this rule is “that a fetus is not a ‘person’ within the meaning of the statute.”2 R ather, the law treats the death of the fetus as a physical injury to the plaintiff mother.3 T he Wrongful Death Act also prevents the parents from pursuing a loss of consortium claim. A claim for loss of companionship and affection of a child, otherwise known as a filial consortium claim, is limited to a child that has been born alive.4
Case law governing the plaintiff father’s emotional distress claim is less established. Assume that the plaintiff father alleges a claim for negligent infliction of emotional distress against the defendant. Is there significance in the marital status of the couple at the time of the incident? Is it important whether the father witnessed the incident and injury to the mother? Does the law’s definition of “father” affect the award he may receive under the impact rule? Why is the age of the fetus important? The answers to these questions will determine the application of Florida’s impact rule to the father’s emotional distress claim.
Florida’s Impact Rule
Since the Florida Supreme Court’s application of the rule on an ad hoc basis, the impact rule has been subject to much criticism.5 F lorida’s impact rule provides:
[b]efore a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress injuries suffered must flow from personal injuries the plaintiff sustained in an impact. The rule actually requires some impact on the plaintiff or, in certain situations, the manifestation of severe emotional distress such as physical injuries illness.6
The requirement of a physical impact can be satisfied by almost any contact, “no matter how large or small, visible or invisible,” with the plaintiff’s body.7 T he rule was developed to limit “fictitious or speculative claims.”8
The Florida Supreme Court has carved out certain exceptions to the impact rule.9 M ost significant for purposes of this discussion is the rule announced by the Florida Supreme Court in Champion v. Gray, 478 So. 2d 17 (Fla. 1985). In Champion,10 t he Florida Supreme Court held that a plaintiff who suffers physical injury resulting from emotional distress caused by witnessing an injury to a family member is permitted to maintain a cause of action for negligent infliction of emotional distress. In Zell v. Meek, 665 So. 2d 1048 (Fla. 1995), the plaintiff daughter was permitted to maintain a cause of action for negligent infliction of emotional distress as a result of witnessing her father’s death, which was caused by a bomb that was planted in the father’s apartment.
Champion and Zell established basic rules that the plaintiff claiming negligent infliction of emotional distress must 1) demonstrate a manifestation in the form of a physical injury as a result of the emotional distress suffered, and 2) be a witness to the incident.11
Florida appellate courts are split on whether the impact rule requires a legal relationship between the witness and the individual who is injured.12 T he Champion and Zell decisions seem to suggest that a legal or close family relationship is required, as both cases involved claims by immediate family members.
The Third and Fourth district courts of appeal require a legal relationship between the plaintiff and the injured party.13 F or example, in Ferretti v. Weber, 513 So. 2d 1333 (Fla. 3d DCA 1987), the Third District Court of Appeal affirmed the trial court’s dismissal of an action seeking “recovery for physical and emotional injury resulting from the emotional impact of witnessing an automobile accident when the plaintiff’s ‘live in’ ladyfriend was killed.”14 T he First District Court of Appeal has specifically rejected the requirement of a legal relationship and has instead interpreted Champion and Zell as merely requiring a close personal relationship, which is to be treated as a question of fact for the jury’s determination.15 A s discussed below, the split among the courts is significant in applying the impact rule to a claim by a father who is not married to the mother. If the couple is not married, the impact rule may preclude the father’s claim.
Exception to the Impact Rule in Negligent Stillbirth Cases
The present law applying the impact rule in negligence cases involving the death of a fetus can be succinctly stated as follows: 1) The impact rule does not apply to a claim for the stillbirth of a 41-week-old fetus; and 2) the impact rule does apply to a claim involving the death of a 15- to 18-week-old fetus. Florida courts have not explained why they have drawn this distinction in the application of the impact rule. The courts have also not specified whether the rule is applicable based on specific fetal ages. In other words, is the impact rule to be applied only in cases involving women in the first and second trimesters of pregnancy?
In Tanner v. Hartog, 696 So. 2d 705 (Fla. 1997), the Florida Supreme Court created an exception to the impact rule in a case involving the negligent stillbirth of a 41-week-old fetus. In that case, the Tanners brought a medical malpractice action as a result of a stillbirth during Mrs. Tanner’s 41st week of pregnancy.16 T he stillbirth was not accompanied by an impact or physical injury to Mrs. Tanner.17 T he question before the Florida Supreme Court was whether the impact rule prevented Mr. Tanner from consideration for his mental pain and anguish.18
In permitting Mr. Tanner to recover for emotional damages without an impact to Mrs. Tanner, the court reasoned that “public policy dictates that an action by the parents for negligent stillbirth should be recognized in Florida [absent an impact].”19
In Thomas v. OB/GYN Specialists of Palm Beaches, Inc., 889 So. 2d 971 (Fla. 4th DCA 2004), the Fourth District Court of Appeal addressed and certified the following question to the Florida Supreme Court: “Absent physical impact, may a man recover for negligent infliction of emotional distress for the loss of a 15- to 18-week-old fetus under Tanner v. Hartog, 696 So. 2d 705 (Fla. 1997)?”20
In answering the question in the negative, the Fourth District Court of Appeal reasoned:
This case turns on our application of Tanner, where the supreme court allowed parents to recover for a wrongful stillbirth….Thus, while the court permitted a cause of action for a wrongful stillbirth, it did not abrogate the long-standing impact rule. Rather, it carved out an exception for a very specific type of case….The plaintiff in this case has expended a great deal of time, thought, and energy to convince this court that the alleged medical malpractice involving a fetus of fifteen to eighteen weeks gestation is the same as a wrongful stillbirth. We disagree.21
Thus, the OB/GYN Specialists court interpreted Tanner as creating a very narrow exception to the impact rule in negligent stillbirth cases, but the court refused to expand the exception to a case involving a 15- to 18-week-old fetus.
What is the explanation for the application of the impact rule by the Florida Supreme Court and the Fourth District Court of Appeal in Tanner and OB/GYN Specialists ? The court in Tanner did not define a stillbirth or specify whether the exception it had created applied to any claim for the loss of a fetus. No other Florida courts have addressed this issue, and no Florida courts have discussed the difference between a miscarriage and a stillbirth.
The medical community defines a miscarriage as a fetal death that occurs before the 23rd week of gestation.22 I n other words, a miscarriage is the death of a fetus during the first or second trimester. A stillbirth is the death of fetus that occurs after the 24th week of gestation, meaning during the third trimester of pregnancy.23
The law, per Tanner and OB/GYN Specialists, would, therefore, appear to be that the impact rule applies to cases involving a miscarriage, but not stillbirth cases. Stated otherwise, the impact rule applies in negligence cases involving the death of a fetus in the first and second trimester. The impact rule does not apply to cases involving the death of a fetus during the third trimester.
Application of the Impact Rule to a Father’s Emotional Distress Claim
As discussed above, the law appears to provide that the impact rule would not be applied to a father’s claim for negligent infliction of emotional distress for the loss of a fetus during the third trimester. The impact rule would, however, be applied if the plaintiff mother was in her first or second trimester at the time of the incident.
In applying the impact rule, and pursuant to Champion and Zell, the plaintiff father, at a minimum, would have to witness the actual impact/injury to the mother. For example, the father would have to witness the mother’s slip and fall incident, or be the driver or passenger in the vehicle during the motor vehicle accident. If the father was not a witness to the incident, the impact rule would preclude his claim. Additionally, the father would have to demonstrate the manifestation of physical injury as a result of the emotional distress suffered.
Finally, there is the issue of whether the father and mother were married at the time of the incident. In the Third and Fourth district courts of appeal, the couple had to be married. Otherwise, the impact rule operates to prevent the father from maintaining a cause of action for emotional distress. In the First District Court of Appeal, the father has the burden of demonstrating a close personal relationship to the mother. The question of whether the father sufficiently met his burden is a question of fact for the jury.
How Does Florida Define “Father” in the Other Contexts?
Depending on the type of action, the definition of “father” affords individual’s rights and responsibilities or limits access. Generally, until there is an adjudication of paternity, the mother of a child is deemed the “natural guardian” of a child born out of wedlock under F.S. §744.301(1) (2010). This means that until the putative father asserts his rights for parental responsibility and timesharing, he has no “rights” to the child in the eyes of the law. Whether there is a biological connection between the father and child, or whether there is a close personal relationship to the mother, is irrelevant.
To the contrary, in the monetary support context, a father’s name on a child’s birth certificate creates a “voluntary acknowledgment of paternity” creating a rebuttable presumption of paternity. If the father signs the Florida Department of Health form, this consenting affidavit is used for the establishment of paternity in an administrative context instead of judicial proceedings under F.S. §742.10(1). A father has 60 days to rescind the voluntary acknowledgment, and if he fails to do so, the acknowledgment constitutes establishment of paternity.24
A child born during an intact marriage, even if the husband is not the biological father, is still deemed legitimate and born “of the marriage,” even if the biological father is later adjudicated the father and ordered to pay support.25 I n some circumstances, the nonbiological father/husband may be denied the opportunity to contest the paternity of the child if the court finds that a genetic test is not in the child’s best interests.26
Within the context of an adoption, the formal adjudication of paternity is not required for the notice provisions to take effect.27 I f a biological father is identified by the mother and he can be located by diligent search, the adoption entity is required to provide notice of an intended adoption plan under F.S. §63.062(3).28 U nder the statute, the putative father is given 30 days to exercise his rights as a father and object to the plan, or waive his right to notice of the proceeding to adopt.
What happens if, during the course of such a pending lawsuit in which a fetal death occurred in the mother’s third trimester, a couple chooses to file for dissolution of marriage? Under Weisfeld v. Weisfeld, 545. So. 2d 1341 (Fla. 1989), the Florida Supreme Court adopted an analytical approach in determining whether a personal injury award was marital property and, thus, subject to equitable distribution. Under Weisfeld, the amount awarded for lost wages or lost earning capacity during the marriage, medical bills paid from marital funds during the marriage, and any other funds for which allocation cannot be made are marital property.29 C ompensation for future loss of earnings, future loss of earning capacity, or future medical expenses are the separate property of the injured spouse.30
When both parties may anticipate recovery for negligent infliction of emotional distress, however disparate each party’s recovery might be, these components for future losses and future expenses may not factor as heavily into the quantification of the award or settlement as in the typical personal injury case in which a spouse is physically injured. Yet, this aspect of the claim certainly cannot be deemed “funds which are not allocated.” Indeed, those portions of the claims are allocated to the individual emotional suffering of each spouse, and likely deemed the separate property of that spouse, thus, not subject to equitable distribution. In the event that the parties are going to execute a release with the defendant, it is important for the family law practitioner to review the language of that release, if at all possible.
In White v. White, 705 So. 2d 123 (Fla. 2d DCA 1998), the wife successfully argued at trial that the settlement release did not specifically allocate any of the funds received by the husband to any specific category. The Second District reversed, stating that the husband’s testimony that the settlement proceeds were for future injuries, losses, or damages was sufficient to establish that their nonmarital character, and the language of the release, which stated that the settlement covered “not only all known injuries, losses, or damages, but any future injuries, losses, or damages, not now known or anticipated,” supported his position.31 T he content of the release may bear significant weight in classifying the award as marital or nonmarital.
Conclusion
The definition of family is shifting, and fathers are becoming more involved than ever during pregnancy, birth, and child-rearing. With the swift evolution of the definition, rights, and responsibilities of fathers within Florida law, practitioners have an emerging platform from which to argue that Florida’s fathers be allowed recovery, regardless of marital status, for emotional distress under Florida’s impact rule in the event of his child’s accidental stillbirth.
1 Tanner v. Hartog,
696 So. 2d 705, 706
( Fla. 1997) (citing Young v. St. Vincent’s Medical Center, Inc., 673 So. 2d 482 (Fla. 1996); Hernandez v. Garwood, 390 So. 2d 357 (Fla. 1980); Duncan v. Flynn, 358 So. 2d 178 (Fla. 1978); Stern v. Miller, 348 So. 2d 303 (Fla. 1977)).
2 Tanner,
696 So. 2d at 706.
3 See Hilsman v. Winn Dixie Stores, Inc., 639 So. 2d 115, 117 (Fla. 4th D.C.A. 1994).
4 See, e.g., U.S. v. Dempsey,
635 So. 2d 961
( Fla. 1994) ( parents permitted to recover for loss of child’s filial consortium as a result of significant injury resulting in child’s permanent total disability).
5 Langbehn v. Public Health Trust of Miami-Dade County, 661 F. Supp. 2d 1326, 1339-40 (S.D. Fla. 2009) (“The Florida Supreme Court has acknowledged that it is difficult to predict how it will apply (or not apply) the impact rule… and several Justices on both sides of the impact rule debate have criticized the Court’s ad hoc approach…. The short of the matter is that there is no good way to figure out whether or not the Florida Supreme Court would apply the impact rule in this case. Predicting the Florida Supreme Court’s future approach to the impact rule is even more perilous given that the Court now has four new Justices.”).
6 Id. (quoting Fla. Dep’t of Corr. v. Abril, 969 So. 2d 201, 206 (Fla. 2007)).
7 Willis v. Gami Golden Glades, LLC,
967 So. 2d 846, 850
( Fla. 2007) (quoting Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517, 527 (Fla. 3d D.C.A. 1985)).
8 R.J. v. Humana of Fla., Inc., 652 So. 2d 360, 362 (Fla. 1995).
9 See, e.g., Abril v. Dep’t of Corrections, 884 So. 2d 206 (Fla. 2d D.C.A. 2004) (finding no impact where plaintiff sued for failure to follow confidentiality procedures), approved, No. SC04-1747, 969 So. 2d 201, 2007 WL 3024020 (Fla. Oct. 18, 2007); Woodard v. Jupiter Christian Sch., Inc., 913 So. 2d 1188 (Fla. 4th D.C.A. 2005) (finding no impact where plaintiff sued for the revelation of confidential student communications), review granted, 924 So. 2d 812 (Fla. 2006); Jordan v. Equity Properties & Dev. Co., 661 So. 2d 1307 (Fla. 3d D.C.A. 1995) (finding no impact where the victim of a robbery hit the assailant with a deposit bag).
10 Champion, 478 So. 2d 17 (receding from on other grounds in Zell v. Meek, 665 So. 2d 1048).
11 Id.
12 See Bashaway v. Cheney Bros., Inc., 987 So. 2d 93, 95 (Fla. 1st D.C.A. 2008) (stating “certain Florida courts have concluded that a close personal relationship must, in fact, be a legal relationship such as marriage”).
13 See Ferretti,
513 So. 2d 1333; and Reynolds v. State Farm Mutual Automobile Insurance Co., 611 So. 2d 1294 (Fla. 4th D.C.A. 1992).
14 Ferretti,
513 So. 2d at 1333.
15 See Watters v. Walgreen Co., 967 So. 2d 930, 933-34 (Fla. 1st D.C.A. 2007).
16 Tanner,
696 So. 2d at 706.
17 See id.
18 See id.
19 Id. at 708.
20 T he Florida Supreme Court did not review the case.
21 Tanner, 696 So. 2d at 972.
22 See Pat Doyle, Noreen Maconochie, Graham Davies, Ian Maconochie, Margo Pelerin, Susan Prior & Samantha Lewis, Miscarriage, Stillbirth and Congenital Malformation in the Offspring of UK Veterans of the First Gulf War, 33
Intl. J. of Epid. 74, 76 (2004).
23 Id.
24 F la. Stat. §742.10(4) (2010).
25 See Daniel v. Daniel, 695 So. 2d 1253 (Fla. 1997).
26 Department of Health and Rehabilitative Services v. Privette, 617 So. 2d 305 (Fla. 1993).
27 B.B. v. P.J.M., 933, So. 2d 57(Fla. 1st D.C.A. 2006).
28 See Heart of Adoptions, Inc. v. J.A. 963 So. 2d 189 (Fla. 1997).
29 See also White v. White, 705 So. 2d 123 (Fla. 2d D.C.A. 1998).
30 Id.
31 Id.
Manuel S. Hiraldo is an associate at Rumberger, Kirk & Caldwell, P.A., in Miami. He received his undergraduate degree in finance and international business from Emory University in 2003, and graduated from Emory University School of Law in 2006. He practices in a number of civil litigation areas, including construction defect, products liability, premises liability, and wrongful death matters.
This column is submitted on behalf of the Family Law Section, Diane M. Kirigin, chair, and Sarah Sullivan and Amy Hamlin, editors. The editors thank Doreen Inkeles, Abigail Beebe, and law student Megan Mann for their contributions to the article.
