Negligent Infliction of Emotional Distress: Where Are We Now?
To best understand the current status of this cause of action, a historic perspective is helpful. The Florida Supreme Court recently reaffirmed that a discernible physical injury is required to state a claim for negligent infliction of emotional distress. See, e.g., Zell v. Meek, 665 So. 2d 1048 (Fla. 1995). Likewise, Florida continues to adhere to the “impact rule,” while carving out certain exceptions due to public policy demands. These exceptions include actions for defamation,1 i nvasion of privacy,2 and wrongful birth.3 The most important of these exceptions is a hybrid to what other jurisdictions call “the relative bystander test” where: 1) the plaintiff suffers a physical injury; 2) caused by psychological trauma; 3) of seeing, witnessing or otherwise being 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, 665 So. 2d at 1054.
The Impact Rule
From its inception, the impact rule barred recovery for purely psychological injuries, International Ocean Tel. Co. v. Sanders, 14 So. 148 (1893). The “impact rule” required that before a plaintiff could 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. In Sanders, a telegraph company was 60 hours late in delivering a message to the plaintiff that his wife was dead or dying. The plaintiff initially stated a simple breach of contract case, but added a claim for the emotional distress, based upon his loss in assisting his ailing wife during her last hours. Without physical impact, the court reasoned that “pain of mind, and injury to feelings and affections” are beyond the reach of the courts to compensate. In other words, there was no way to mete out in hard currency what is spiritually intangible. Id. at 448.
The Supreme Court again addressed the issue of negligent infliction of emotional distress in Gilliam v. Stewart, 291 So. 2d 593 (Fla. 1974). In Stewart, the plaintiff was lying in her bed when she heard two cars collide, and ultimately felt the impact with the side of her home. She immediately went outside to see if anyone was hurt and let people come in to use her phone. Within 15 minutes, she went back to bed with chest pains. This case was distinguishable from Sanders, in that the plaintiff did suffer some discernible physical injury (a cardiac arrest); however, the injury was not the product of any prior physical impact. Accordingly, the court denied recovery.
The Champion Exception
In 1985, the Supreme Court revisited and revised the impact rule. In Champion v. Gray, 478 So. 2d 17 (Fla. 1985), a drunk driver ran off the road, killing Karen Champion. Tragically, her mother heard the impact and came to the scene of the accident. When she saw her daughter’s body on the ground, grief overcame her and she died of shock alongside her daughter. The court held that no physical impact from an external force was required where the plaintiff suffered verifiable physical injuries (death). Without disapproving Stewart, the court fashioned a dichotomy between two distinct emotional circumstances. Id. at 19. The first case, as exemplified by Stewart, involves fear for one’s own safety. The second instance centered on anxiety or stress for the injury or death of another. The court specifically restricted a cause of action to the second category. Relying upon public policy, the court modified the impact doctrine allowing recovery for negligent infliction of emotional distress without impact! Florida’s highest court proclaimed that a cause of action exists when there is: 1) a significant discernible physical injury, 2) when such injury is caused by psychic trauma, 3) resulting from the negligent injury imposed on another, 4) who, because of his or her relationship to the injured party, and 5) his or her involvement in the event causing the injury, is foreseeably injured.
The threshold test is: 1) whether the plaintiff was at the scene of the accident as contrasted with one who is distanced from it; 2) whether the emotional impact flowed from the sensory of actual observance of the accident, contrasted with learning about the accident from others after it occurred; and 3) whether the plaintiff and the victim were closely related.4 Because the duty is intimately tied with the facts, each claim must be evaluated on a case-by-case basis.
The Fourth DCA elaborated on Champion in Reynolds v. State Farm Mut. Auto. Ins. Co., 611 So. 2d 1294 (Fla. 4th DCA 1992), reh. denied, 623 So. 2d 494 (Fla. 1993). In Reynolds, a young girl witnessed her boyfriend’s death in an auto collision. She suffered from amnesia and could not recall the events preceding, during, or after the accident. Her reaction was the suppression of her menstrual cycle for 11 months. This medical condition was found to be an insufficient physical injury under Champion. The court held that Reynolds5 failed to prove that she sustained a physical injury connected with her emotional distress over her boyfriend’s death. Even though the plaintiff sustained her own injuries in the accident, she did not meet the “physical injury” requirement for negligent infliction of emotional distress related to her boyfriend’s death.
A Demonstrable Physical Injury: Exceptions to
the Impact Rule
If there is a demonstrable physical injury, a threshold guarantee exists that the claim is not fraudulent. Without the discernible physical injury which foreseeably flows from an emotional shock, the court is reluctant to expand the impact rule. For example, in Doyle v. Pillsbury Co., 476 So. 2d 1271 (Fla. 1985), the court refused to expand the doctrine to cases where the claimant was startled by something in her food. In Doyle, the plaintiff’s husband showed her a can of peas with a large insect floating on the surface. The plaintiff jumped back in alarm, fell over a chair and suffered physical injuries. Foreign object cases uniformly require some ingestion of a portion of the “contaminated” food. The ingestion requirement is founded on foreseeability rather than the impact rule.
Even in the face of dramatic facts, where the emotional scars are evident, Florida does not recede from requiring physical injury as a result of an emotional shock. In Brown v. Cadillac, 468 So. 2d 903 (Fla. 1985), a defectively designed accelerator pedal causedBrownto strike and kill his mother, who had just left the car. Even though Brown elicited psychiatric testimony at trial, the court required demonstrable physical as well as emotional injury. The court’s list of demonstrable physical injuries included: “death, paralysis, muscular impairment, etc.” In compliance with Champion, the plaintiff must show a causal connection between the mental distress and the resultant physical injuries. Because Brown did not allege and prove any physical trauma, the court vacated his judgment.
The dictum in Sguros v. Biscayne Recreation Dev. Co., 528 So. 2d 376 (Fla. 3d DCA 1987), states what is on the minds of many judges, “despite our view that the impact rule should be abolished. . . we are nonetheless bound by this state’s affinity [to it].” Id. at 379. The court applied the impact doctrine and subsequently denied recovery for a man who died as a result of negligent security. Peter and Joanna Sguros lived aboard their sailboat, docked at the Dinner Key Marina. The city contracted with BRD to manage and secure the marina. One night, while the Sguros were asleep, they awoke to the sound of intruders on the deck. The intruders turned the engine on. When Peter attempted to turn the engine off from below, he suffered a fatal heart attack. The Third DCA refused to classify Peter’s apprehension resulting from the realization that intruders were aboard the ship as an “impact,” and affirmed the defendant’s motion for summary judgment.
Ten Years Later, the
Impact Rule Is Reaffirmed
On March 19, 1989, doctors from Humana Hospital misdiagnosed the plaintiff as HIV-positive. R.J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995). For 19 months, the plaintiff mistakenly lived with the pain and stigma that he was a carrier of the fatal virus. He alleged damages of hypertension, pain and suffering, mental anguish, loss of capacity for the enjoyment of life, etc. In his claim for negligent infliction of emotional distress, plaintiff’s attempts to advance negligent HIV diagnosis as an exception to the impact rule were rejected. The reasons: 1) increasing cost of medical care to the public in allowing compensation without actual physical injury, and 2) allowing the exception would necessarily warrant claims for emotional distress for any misdiagnosis from negligent medical testing. The Florida Supreme Court did carve out an exception for plaintiffs affected beyond the ordinary testing, taking of blood, or touching of a patient by a doctor. If a plaintiff can establish that the misdiagnosis led to invasive medical treatment or prescriptions of harmful medication, and that he or she suffered as a result, the plaintiff meets the requirements of the impact rule and may recover. Conclusively, the plaintiff cannot recover without a showing of some physical injury as a result of the misdiagnosis.
Similarly, in Gonzalez v. Metropolitan Dade Cty. Health Trust, 651 So. 2d 673 (Fla.1995), the court gave no relief for the emotional distress that accompanies the negligent handling of a corpse, absent physical injury to the decedent’s survivors or the funeral home’s willful or wanton misconduct. The adjectives “willful” and “wanton” underlie actions for intentional infliction of emotional distress usually reserved for the most bizarre of funeral liability cases. In one such case, the embalmer removed the corpse of a five-year-old without his parent’s permission, embalmed the body, and held it as security for the payment of an excessive fee.6
Most recently, in Zell v. Meek, 665 So. 2d 1048 (Fla. 1995), the court reaffirmed its position requiring a discernible “physical injury.” However, it widened the proximity requirement by holding that the interval of time between the psychic trauma and its physical manifestations is but one factor in proving causation. A wide gap of time is not necessarily dispositive. The court did not invoke an arbitrary time line beyond which claims for negligent infliction of emotional distress are barred. The Meek family was literally shattered by an explosion in their apartment. The decedent’s daughter heard the explosion, which shattered windows and light fixtures in the apartment. Pieces of the light fixture in the kitchen landed on Meek and her mother. When daughter Meek made it through the smoke to the front door, she saw her father lying there, scorched and dying.
She could not stop reliving the event, suffering from short-term memory losses, and bad dreams. These symptoms alone would not sustain an action. However, physical manifestations began later on with insomnia coupled with depression. Significantly, nine months after the bombing, plaintiff felt pain below her rib cage that spread to her chest and lower joints. Eventually she was unable to swallow. Her esophagus blocked and she experienced difficulty breathing. Here, the court expanded the time and limits on the class of claimants that could recover. In Champion, they imposed a rigid temporal proximity requirement to ensure that the claimant’s physical trauma was a direct result of the psychic trauma. The Meek court recognized that if initial physical symptoms continue to worsen with time, the specter of fraudulent claims is decreased.
The Meek decision also relaxed the temporal element and holding that proximity to the accident in time and space does not necessarily require the direct and immediate sight or hearing at the scene of the accident. Instead, a claimant can recover where there is a direct perception of some of the events making up the entire accident, including the immediate aftermath of the accident.7
The court again outlined the elements required to allege 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 which caused the negligent injury to another; and 4) the person must have a close personal relationship to the directly injured person.8 Id. at 1053.
Generally, the impact doctrine is inapplicable to recognized torts in which damages are predominantly emotional, such as defamation or invasion of privacy. The Supreme Court’s exceptions to the impact rule grow from various public policy concerns. For example, in wrongful birth cases, the court does not require physical injury to the claimant. Kush v. Lloyd, 616 So. 2d 415 (Fla. 1992). In that case, the plaintiff’s pediatrician advised her during her pregnancy that there were no genetic abnormalities in the fetus. The child was born deformed, and this same doctor informed the plaintiffs that the deformity was an accident of nature, not a genetic defect, and that she and her husband could have another child without adverse consequences. Seven years later, the plaintiff gave birth to a second son, who had the same deformities as the first. Tests revealed that both inherited the defect from their mother. Plaintiffs brought suit and recovered for their mental anguish as a natural consequence of the tort of wrongful birth. Interestingly, the court came to its decision comparing the pediatri- cian’s negligence with a newspaper’s negligence in printing a defamatory article. They opined that emotional injury is more likely to occur when a negligent doctor leads parents to give birth to an impaired child than if someone lies about that parent in the local paper. While one tort can be remedied by a retraction in the next edition, the other is irreversible. Id. at 422.
The same public policy arguments paved the way in Tanner v. Hartog, M.D., 1996 WL 346936 (Fla. 2d DCA 1996), where a father claimed that the negligent stillbirth9 of his child should be recognized as a separate cause of action because the only damage sustained is emotional. The lower court recognized the parent’s injury as “predictable” as the parents eagerly expected their first child. Nevertheless, the Second District certified the following question to the Florida Supreme Court: “Does the law of this state support a cause of action for emotional damages of an expectant father and mother resulting from a stillbirth caused by the negligent act of another?”
As the certified question suggests, the boundaries of negligent infliction of emotional distress are still being decided. While the “impact rule” is still viable, public advances continue to make factual circumstances that may warrant exceptions to the rule. Courts continue to weigh the legal and social consequences of each case, ever protective of the slightest hint of fraud.
A strong public policy for recovery is made in National Car Rental Systems, Inc. v. Bostic, 423 So. 2d 915 (Fla. 3d DCA 1982), petition for rev. denied, 436 So. 2d 97 (Fla. 1983). In Bostic, not only were the son and mother involved in the same accident, but the son regained consciousness before help could arrive and actually witnessed his mother’s death while he lay helpless and unable to respond. Judge Pearson wrote that he was able to avoid the strictures of the impact rule which otherwise would have prevented Bostic from recovering damages for his emotional scars of witnessing his mother’s death. Instead, the court noted that Bostic’s emotional injuries were themselves derived from his own physical injury which, in turn, rendered him unable to respond to his mother’s cries for help. Notably, the courts will search for the “impact” and define it as justice requires. q
1 Miami Herald Publishing Co. v. Brown, 66 So. 2d 679, 681 (Fla. 1953) (mental suffering constitutes recoverable damages in cases of negligent defamation).
2 Cason v. Baskin, 20 So. 2d 243 (Fla. 1944).
3 Kush v. Lloyd, 616 So. 2d 415 (Fla. 1992).
4 Champion v. Gray, 478 So. 2d 17, at 19 (Fla. 1985) (quoting Dillon v. Legg, 68 Cal.2d 728 (1968)).
5 The court in Reynolds v. State Farm Mut. Auto. Ins. Co., 611 So. 2d 1294 (Fla. 4th D.C.A. 1992), reh.. denied, 623 So. 2d 494 (Fla. 1993), understood that Champion required a “familial relationship” between the plaintiff and the victim. Where no legal relationship existed, emotional distress could not be maintained. Since Reynolds was merely dating the victim, regardless of their “especially close emotional attachment,” the court would not permit recovery. Id. at 1297.
6 See Kirksey v. Jernigan, 45 So. 2d 188 (Fla. 1950).
7 The court inadvertently outlined the outer limits of negligent infliction of emotional distress, when discussing the English case of McLoughlin v. O’Brian, 2 A11 E.R. 298 (1982). In O’Brian, the plaintiff’s husband and three children were involved in a car accident due to the defendant’s negligence. The plaintiff only heard about the accident one hour after it occurred. She was driven to the hospital and told her daughter died. She heard and saw her other daughter crying, her face cut and covered with oil and dirt. As she went down the corridor, she saw her husband in a state of despair, and was taken to see her son who she heard screaming with pain. After appearing to recognize his mother, her son lapsed into unconsciousness. In awarding the mother damages for her psychic injury, the English courts argued that if she had found her family by the roadside, there would have been no question as to her entitlement; so she should likewise be able to recover when, acting in accordance with normal and irresistible human instinct, she goes to where her family can be found.
8 Contra, supra note 2.
9 See also Crenshaw v. Sarasota Cty. Pub. Hosp. Bd., 466 So. 2d 427 (Fla. 2d D.C.A. 1985) (no cause of action for mother whose stillborn baby was inadvertently placed with the hospital’s laundry and mutilated due to the absence of physical impact upon the mother).
Ira Leesfield is the managing partner of Leesfield, Leighton & Rubio, P.A. He is a past president of the Academy of Florida Trial Lawyers, a past chair of The Florida Bar CLE Committee, serves as a life member of The Roscoe Pound Foundation, a fellow of the American Bar Association, and is an adjunct professor of law at the University of Miami School of Law. Mr. Leesfield expresses his appreciation to George M. Mahfood and Alba Varela for their assistance in preparing this article.
This column is submitted on behalf of the Trial Lawyers Section, William B. Wilson, chair, and Brett Preston, editor.