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So I Finally Understand the “Impact Rule” — But Why Does It Still Exist?

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old lady and truck In reading the Florida Supreme Court’s recent decision in Willis v. Gami Golden Glades, LLC, 967 So. 2d 846 (Fla. 2007), I was catapulted back to a chilly auditorium in Gainesville, back in December of 1990, taking my final exam in Professor Joe Little’s Torts I class. Scanning the exam in a cold sweat, I remember eyeing a question that read something like: “What is the ‘impact rule’ and how is it applied in Florida?”

Back then, Professor Little was hoping to elicit some basic recognition that litigants could not generally recover for purely emotional injury. He was asking us to recall the one exception he had gone over in detail, in which a court had allowed a man to recover damages for the death of his wife after she suffered a fatal heart attack from the intense emotional devastation that occurred upon seeing the body of her daughter, who had just been killed by a drunk driver.1

In the 17 years since Professor Little’s torts class, the Supreme Court has carved out numerous exceptions to the rule, and has provided many more opportunities for students to score bonus points on law school exams containing “impact rule” questions. Notwithstanding its numerous concurring and dissenting opinions, Willis finally provides some much needed clarity on how the Supreme Court expects lower courts to apply this ever-evolving, somewhat amorphous rule.

The Long and Tortured History of the Impact Rule
The impact rule has been firmly ensconced in American jurisprudence since an 1888 English decision.2 Florida traces its particular impact rule roots back to the 1893 decision in International Ocean Telegraph Co. v. Saunders, 14 So. 148 (1893).

The International Ocean case arose when the plaintiff, Mr. Saunders, sued a telegraph company, for its failure to timely transmit an urgent telegram that came from a hospital, advising him that his wife was dying and he was needed at once.3 While the company received the message on the morning of October 4, 1890 — within an hour-and-a-half of the hospital sending it — the company did not deliver it to Mr. Saunders until over 60 hours later.4 Sadly, by the time he received the telegram, his wife had been dead for over 10 hours.5

Mr. Saunders sued the telegraph company for the “mental suffering and disappointment in not being able to attend upon his wife in her last moments, and to be present at her funeral.”6 The jury awarded him $1,995 for his anguish.7 The Supreme Court, however, refused to agree that he had a right to recover under these circumstances.8 In rejecting Mr. Saunders’ claim, the court wrote:

The resultant injury is one that soars so exclusively within the realms of spirit land that it is beyond the reach of the courts to deal with, or to compensate by any of the known standards of value. It presents a class of cases where legislative action fixing some standard of recovery would be highly appropriate; but, until this action is taken, we do not feel that the courts are authorized to so widely diverge from the circumscribed limits of judicial action as to undertake to mete out compensation and money for the spiritually intangible.9

For years, litigants quietly accepted that pure emotional damage negligently inflicted without “physical” injury was not compensable. In 1972, however, the Fourth District wrote an opinion rejecting this draconian rule.10 In Stewart v. Gilliam, 271 So. 2d 466 (Fla. 4th DCA 1972), the Fourth District questioned why Florida insisted on clinging to the impact rule, even as other jurisdictions had abandoned it.11

In Stewart, a woman laying in her bed, heard a crash at an intersection near her home, and then heard a second crash of the cars actually striking her house.12 When she went to her front porch and saw the defendant’s car against her house with steam coming out of the radiator, she immediately began to experience chest pains, and shortly thereafter suffered a myocardial infarction.13

The Fourth District believed that under such circumstances, Mrs. Stewart had a right to recover for the damages she suffered, notwithstanding that she had not experienced any physical impact.14 The court then boldly rejected the impact rule, urging the Supreme Court to follow its trail-blazing lead, and asked that the state align itself with the overwhelming majority of jurisdictions which had either abandoned or refused to adopt the rule.15

The Supreme Court accepted jurisdiction to answer the question of whether Florida should abolish the impact rule, and promptly admonished the Fourth District, that intermediate appellate courts — no matter how well intentioned — lack the authority to overrule ancient precedent.16 The court then punctuated its admonition by reversing the Fourth District’s opinion and holding that there was no valid justification to recede from the impact rule.17

Eleven years later, however, in Champion v. Gray, 478 So. 2d 17 (Fla. 1985), the Supreme Court again revisited the oft-posed question about whether Florida should abrogate its impact rule. In a case with facts very similar to those in Stewart, the Fifth District had asked the court to decide whether Florida courts should allow recovery for physical consequences that result from the mental and/or emotional stress caused by the defendant’s negligence, even when there is no physical impact to the plaintiff.18

Champion involved a drunk driver, who ran his car off the road and killed a young woman pedestrian. The young woman’s mother heard the impact and immediately ran to the accident scene.19 In seeing her daughter’s body, the mother was so overcome with shock and grief, that she collapsed and died on the spot.20

The father then brought an action for damages caused by the driver’s negligence which led to the death of his wife.21 The Supreme Court again wrestled with the previously unyielding impact rule. This time, though, it decided that death or significant discernible physical injury, when caused by psychological trauma resulting from a negligent injury imposed upon a close family member within the sensory perception of the physically injured person, did indeed present a great harm.22 It further found that because that harm was so significant, it was unnecessary to require direct physical contact as a condition precedent to a cause of action.23

The Champion court noted that the impact doctrine gives practical recognition to the notion that there is some level of harm which each person has to absorb without recompense, as the price for living in an organized society.24 Still, expressing some apparent regret for its decision in Stewart, the court then advised that there is a point at which the price of death or significant discernible physical injury caused by psychological trauma results in “too great a harm” to impose additional physical contact requirements as a prerequisite to recovery.”25

The impact issue reared its head again 10 years later, when Zell v. Meek, 665 So. 2d 1048 (Fla. 1995), presented the Supreme Court with a scenario in which the physical injury did not result until almost nine months after the incident causing the emotional distress.26 There, a woman had witnessed her father’s death at the hands of an anonymous bomber.27 Her father had picked up a small box left on the family’s apartment doorstep, which led to a tremendous explosion that rocked the entire apartment, shattering windows, and blowing out smoke detectors and the thermostat from the wall.28 While the woman did not suffer any physical injuries as a direct result of the smoke or shattered glass, she did begin to experience insomnia, depression, short-term memory loss, a fear of loud noises, bad dreams, and an inability to stop reliving the event.29

Almost nine months after the bombing, the plaintiff began suffering from a physical impairment in the upper area of her stomach, which was eased somewhat with ulcer medication.30 However, she eventually experienced a blockage in her esophagus, was unable to swallow, had difficulty in breathing, and had joint and hip pain all attributable to the psychological trauma suffered as a result of her father’s death.31 Despite the fairly lengthy delay between the emotional trauma and the physical manifestation of the injuries, the Supreme Court ruled that the impact rule did not bar the woman’s claim.32

From the time the court decided Zell until now, many courts have cited the following elements from Zell, as a means of articulating a claim 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.33

The cases citing Zell clearly suggest that litigants who claim emotional injury must suffer a physical injury.34 However, in its most recent decision involving the impact rule, the Willis court has clarified that when there is an impact, no physical injury is necessary.35 In other words, the requirements for emotional distress claims are disjunctive: Either a victim must allege an impact; or, in the absence of an impact, the victim must allege physical manifestation of the emotional injury.36

The Willis Facts
Mrs. Willis arrived at a Dade County Holiday Inn.37 Upon her arrival, there were no parking spaces available in the hotel parking lot.38 The hotel security guard specifically instructed her to park her vehicle in a lot across the street.39 Notwithstanding the concerns she expressed about the darkness of the lot and the unfamiliarity of the neighborhood, the guard assured her that it was “safe to park next door” and told her to park there.40 The guard would not assist any further, refusing to park the car for her, and even refusing to watch for her as she traveled to and from the designated location.41

As Mrs. Willis exited her vehicle, a man put a gun to her head, and ordered her to empty her pockets.42 She heard a “click” as if the gun had fired.43 As she attempted to walk away, the gunman used the weapon to wave her back to the car, issuing additional demands and threats.44 He then demanded that she lift her clothing, and as she did so, he placed his hands on her exposed body.45

Even after the gunman stole Mrs. Willis’ rented car, the security guard still refused to provide any assistance to the victimized woman, acting instead as though he had never seen her.46 When Mrs. Willis approached the hotel employees inside the facility, they were similarly disinterested and dismissive.47

That evening, Mrs. Willis could not sleep and walked the floor all night “scared and in agony.”48 She went to a local emergency room the next day, and after that, was treated by a medical doctor, as well as a psychiatrist and a psychologist, for anxiety, depression, panic attacks, and post-traumatic stress disorder.49 As part of her treatment, Mrs. Willis took medication, including Paxil, Buspar, Wellbutrin, and Zoloft.

Mrs. Willis sued the owners of the Holiday Inn for her emotional damages. The trial court entered summary judgment against her (affirmed by the district court), finding that the impact rule barred her claim for her purely emotional injuries.50 However, the Supreme Court quashed that decision, and provided some much needed clarity on how courts should apply the impact rule.

A “Touching” or “Not a Touching”: That Is the Question
Majestically simple, yet potent in meaning, the Willis court declared: “When an impact or touching has occurred the rule has no application.”51 In analyzing impact rule cases, we often seem to forget that when the victim has been “touched,” in some way, he or she can legally claim damages for the emotional injury suffered as a result of the defendant’s negligence. Importantly, and perhaps somewhat counter-intuitively, even the slightest touch may constitute an “impact” under the rule, notwithstanding that the word “impact” seems to connote a major blow of some kind.52

The fact that Mrs. Willis was “touched” with the gun and the gunman’s hands was a key component to the Willis majority’s ultimate decision. For the benefit of both Mrs. Willis and future litigants, the Supreme Court advised that once there has been a “touching,” a claim for emotional injury escapes the tentacles of the impact rule. In other words, if she is “touched,” a victim may recover for her emotional injury without ever having to show a physical manifestation of that injury.

Physical Manifestation of the Emotional Injury When There Is No Impact
The seminal cases involving physical manifestation of emotional injury are the previously cited cases of Champion v. Gray53 and Zell v. Meek.54 In both of those cases, there had been no actual “impact” to the victims involved. Instead, the extent of the pure emotional trauma suffered by each victim was so extreme, that it caused the victims to ultimately manifest their emotional injury in some physical way.55 In Champion, the manifestation came in the form of an immediate and fatal heart attack.56 In Zell, while delayed, the manifestation materialized in an esophageal blockage and other physical ailments.57

Neither Willis nor the Champion/Zell line of cases changes the fact that as a “general rule,” the Supreme Court still requires either impact or a physical manifestation of the emotional injuries, as disjunctive conditions precedent to maintaining a cause of action for emotional trauma. Without one of those two showings, Florida does not allow claims for emotional injury; a lesson many litigants have learned the hard way.

Take, for example, the case where a plaintiff sued a medical facility, a laboratory, and a physician, who had misdiagnosed him with the HIV virus back in the late 1980s.58 The plaintiff alleged that the medical facility had taken his blood, sent it to a lab for testing and analysis, and in March of 1989, informed him that the test came back positive for HIV.59 The plaintiff began treatment shortly after that, and was retested approximately 19 months later, in November of 1990.60 The second test revealed the error, and showed that the plaintiff had never been infected with the HIV virus after all.61

Despite the plaintiff’s allegations that the incorrect diagnosis had caused him to suffer bodily injury including hypertension, as well as pain and suffering, mental anguish, and the expense of medical care and attention, the trial court dismissed the complaint, finding that he failed to meet the requirements of the impact rule.62 In affirming the dismissal of the plaintiff’s complaint, the Supreme Court noted that 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 suffered in an impact.”63 The Supreme Court reaffirmed that the impact rule serves its purpose of assuring the validity of claims for emotional and psychological damages, and reiterated that the impact rule is a well-entrenched part of Florida’s jurisprudence. The court rejected the plaintiff’s invitation to create a limited exception to the impact rule for a negligent HIV diagnosis.64

In School Bd. of Miami-Dade County, Florida v. Trujillo, 906 So. 2d 1109 (Fla. 3d DCA 2005), rev. denied, 917 So. 2d 196 (Fla. 2005), the Third District also applied the seemingly draconian impact rule. It refused to allow recovery to parents of a four-year-old special needs boy, who had been driven around aimlessly on a school bus for four hours after the driver got lost on the way to school. The bus had picked up the child late to begin with, and then, after missing the other students on the route because of the lateness, drove around for over four hours in a nearly futile attempt to find the school.

the time the child arrived at school, he had urinated on himself. He was also thirsty and dehydrated. The child’s pediatrician found no signs of abuse or physical injury.65 Still, after the incident, the child began having nightmares, started wetting his bed, and appeared to have developed a fear of school buses.66 The court ruled that because this child had not suffered physical injury or impact, and his emotional damages were intangible, the impact rule applied to preclude recovery of damages.67

LeGrande v. Emmanuel, 889 So. 2d 991 (Fla. 3d DCA 2004), presented the Third District with yet another case where the court held the impact rule barred recovery.68 There, the court refused to allow a Baptist minister to recover on his negligent infliction of emotional distress claim because he neither suffered, nor alleged to have suffered, any discernible physical injury.69

The minister brought suit after two parishioners stood up at a meeting of 250 congregants and publically accused him of purchasing a Mercedes with cash he stole from the church (the court did reverse the dismissal of the slander claims).70 The parishioners also charged that the minister was Satan.71 The minister alleged that due to the false statements, he lost over 60 percent of his congregation, his reputation and good name were destroyed, and he was caused to suffer great mental pain and anguish as a result.72

Again, the court affirmed the dismissal of both the intentional and negligent claims of emotional distress. It found that the allegations did not meet the high threshold for the intentional infliction claim (which is an exception to the impact rule), and further found that without physical injury or impact, there was no claim for negligent infliction of emotional distress.73

In 2002, in Gracey v. Eaker, 837 So. 2d 348, 358 (Fla. 2002) (Pariente, J., concurring), Justice Pariente wrote the first of four concurring opinions, calling for the abolition of the impact rule. She subsequently wrote similar concurrences in Rowell v. Holt, 850 So. 2d 472, 482 (Fla. 2003) (Pariente, J., concurring); Florida Dept. of Corrections v. Abril, 969 So. 2d 2001 (Fla. 2007) (Pariente, J., concurring); and Willis v. Gami Golden Glades, LLC, 967 So. 2d 846 (Fla. 2007) (Pariente, J., concurring). In the most recent incarnation of her plea, Justice Pariente observed how the Supreme Court continues to carve out “well-meaning exceptions” to the impact rule on a case-by-case basis.74 The inherent clash between the rule and the litany of well-meaning exceptions, however, has resulted in numerous certifications by the district courts of appeal, who yearn for guidance as to which sets of individualized facts should indeed constitute one of the cadre of available exceptions.

Today, litigants may bring emotional distress claims without impact and without any physical manifestation of a psychological injury, under the following sets of circumstances: i.e., if they a) ingest a contaminated food or beverage;75 b) have a psychotherapist who breaches the statutory duty of confidentiality and privacy;76 c) have an entity share the results of their HIV test in violation of F.S. §381.004;77 d) are the victim of an intentional tort, such as defamation, invasion of privacy, and/or intentional infliction of emotional distress;78 or e) if they suffer from a “freestanding tort,” such as wrongful birth or negligent stillbirth.79

While each and every one of these exceptions is certainly well meaning and understandably actionable, the Supreme Court has left us with little guidance as to what particular elements go in to creating a basis for an impact rule exception. How is it, for example, that a person who ingests a contaminated food or beverage experiences greater emotional distress than a person who agonizes because a beloved pet (a “family” member in many circles) suffers due to veterinary malpractice?80 Or for that matter, why does the person who has the results of her HIV test revealed in violation of a statute suffer any more than a person who is robbed at gun point while working at her employer’s negligently secured convenience store?81

Then we may ask whether the emotional turmoil created by ingesting a foreign substance can compare to the emotional turmoil a gay teenager experiences when he confides to the chaplain at his bible-centered school that he is gay, only to have the chaplain reveal that highly personal information to the administration, and ultimately to the rest of the school?82 While the Supreme Court recently discharged jurisdiction on this set of facts in the case of Woodard v. Jupiter Christian School, Inc., 2007 WL4258366 (Fla. Dec. 6, 2007), it very well could have become the next actionable exception to the impact rule. The irreconcilable clash between which facts become exceptions and which do not, as Justice Pariente has consistently noted, palpably illustrates why the Supreme Court should abolish the impact rule once and for all, and leave it up to a jury to evaluate the quality and extent of the emotional injury as a condition precedent to recovery.

Future of Florida’s Impact Rule
Willis embodies the inner judicial turmoil the incongruities and complexities of the impact rule has engendered among the members of the Supreme Court, evidenced by its three pages of “opinion” followed by 24 pages of concurrences and stinging dissents. Clearly, the most we can deduce about the future of the impact rule in Florida is that the future is far from clear. As one Justice wrote in Willis, for example, the impact rule “reflects an outmoded skepticism for damages resulting from mental injuries,” pointing to another Justice’s dissent as proof of that skepticism of the court’s ability to corroborate and evaluate the veracity of emotional injuries.83 As of now, the debate rages on about the legitimacy of mental injury, and the ability to corroborate those claims.

Until such time as the Supreme Court heeds Justice Pariente’s call for abolition of the impact rule, litigants should not be shy about suggesting to appellate courts that their particular facts may very well present the newest exception on the path to recovery. In the First District, a man’s stepchildren recently convinced that court that they fell within the “close family relationship” requirement of the Champion exception, and were allowed to recover damages, even though they were neither “blood” nor adoptive relatives.84 As the legal world continues to gain tolerance and understanding of the extent and depth of mental and emotional injury, and accepts that these injuries are indeed very real, it appears our Supreme Court will keep pace in allowing victims to recover for them, even if it refuses to take the bold step of abolishing the impact rule altogether.

For now at least, the Supreme Court has made several things clear: first, as long as there is “impact,” — no matter how slight — there is no impact rule; second, only when there is no impact does the law require the emotional injury to manifest itself into some kind of physical injury; and third and finally, in the absence of a bright line rule, no one knows for sure which sets of today’s facts will create tomorrow’s exceptions.

For now, we can only hope that one day the Supreme Court will answer Justice Pariente’s call and recognize that the time has come to abolish the impact rule. While that act may remove a fertile area for law school torts examination questions, abolition will certainly validate the reality of emotional and mental injury, and alleviate the uncertainty created by a rule defined by its exceptions.

1 Champion v. Gray, 478 So. 2d 17 (Fla. 1985).
2 Stewart v. Gilliam, 271 So. 2d 466, 471 (Fla. 4th D.C.A. 1972), quashed, 291 So. 2d 593 (Fla. 1974).
3 Id.
4 Id.
5 Id.
6 Id. at 152.
7 Id. at 149.
8 Id. at 152.
9 Id.
10 Stewart v. Gilliam, 271 So. 2d 466 (Fla. 4th D.C.A. 1972).
11 Id. at 471.
12 Id. at 467.
13 Id.
14 Id. at 469-470.
15 Id. at 471.
16 Gilliam v. Stuart, 291 So. 2d 593, 594-95 (Fla. 1974).
17 Id. at 595.
18 Champion v. Gray, 478 So. 2d 17, 18 (Fla. 1985).
19 Id.
20 Id.
21 Id.
22 Id.
23 Id. at 18-19.
24 Id. at 18.
25 Id. at 18-19.
26 Zell v. Meek, 665 So. 2d 1048, 1049 (Fla. 1995).
27 Id.
28 Id.
29 Id.
30 Id.
31 Id. at 1050.
32 Id. at 1053.
33 See LaGrande v. Emmanuel, 889 So. 2d 991, 995 (Fla. 3d D.C.A. 2004); Geidel v. City of Bradenton Beach, 56 F. Supp. 2d 1359, 1368 (M.D. Fla. 1999); see also Thompson v. Spears, 336 F. Supp. 2d 1224, 1237 (S.D. Fla. 2004), aff’d, 129 Fed. Appx. 497 (11th Cir. 2005)(unpublished).
34 38.Id.
35 Willis, 967 So. 2d 846 (Fla. 2007).
36 Id.
37 Id. at 848.
38 Id.
39 Id.
40 Id.
41 Willis, 967 So. 2d 846 (Fla. 2007).
42 Id. at 849.
43 Id.
44 Id.
45 Id.
46 Id.
47 Willis, 967 So. 2d 846 (Fla. 2007).
48 Id.
49 Id.
50 See id. at 848.
51 Id. (emphasis in original).
52 See id., citing Zell v. Meek, 665 So. 2d 1048, 1050, n. 1.
53 Champion v. Gray, 478 So. 2d 17 (Fla. 1985).
54 Zell, 665 So. 2d 1048, 1049 (Fla. 1995).
55 Id.
56 Champion, 478 So. 2d at 18.
57 Zell, 665 So. 2d at 1049.
58 R. J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995).
59 Id. at 362.
60 Id.
61 Id.
62 Id.
63 Id. at 362 (citing, Reynolds v. State Farm Mut. Auto. Ins. Co., 611 So. 2d 1294, 1296 (Fla. 4th D.C.A. 1992), rev. denied, 623 So. 2d 494 (Fla. 1993)).
64 Id. at 363. But see Florida Dept. of Corrections v. Abril, 969 So. 2d 2001 (Fla. 2007), holding that a claim exists under Fla. Stat. §381.004(3)(4) (Supp. 1996), for a breach of a duty of confidentiality with respect to HIV test information.
65 School Bd. of Miami-Dade County, Florida v. Trujillo, 906 So. 2d 1109, 1110 (Fla. 3d D.C.A. 2005), rev. denied, 917 So. 2d 196 (Fla. 2005).
66 Id.
67 Id. at 1111.
68 LaGrande v. Emmanuel, 889 So. 2d 991 (Fla. 3d D.C.A. 2004).
69 Id.
70 Id. at 993.
71 Id.
72 Id. at 993-94.
73 Id. at 995.
74 Willis, 967 So. 2d 846 (Fla. 2007).
75 Hagen v. Coca Cola Bottling Co., 804 So. 2d 1234 (Fla. 2001).
76 Gracey,837 So. 2d 348, 358 (Fla. 2002).
77 Abril, 969 So. 2d 2001 (Fla. 2007).
78 Rowell v. Holt, 850 So. 2d 474, 478, n. 1 (Fla. 2003).
79 Kush v. Lloyd, 616 So. 2d 415, 422 (Fla. 1992), and Tanner v. Hartog, 696 So. 2d 705 (Fla. 1997). But see Thomas v. OB/GYN Specialists of the Palm Beaches, Inc., 889 So. 2d 971 (Fla. 4th D.C.A. 2004) (distinguishing the exception to the impact rule carved out in Tanner, based on the age of the fetus lost due to the alleged negligent stillbirth).
80 See Kennedy v. Byas, 867 So. 2d 1195 (Fla. 1st D.C.A.), rev. dismissed, 879 So. 2d 622 (Fla. 2004).
81 Rivers v. Grimsley Oil Co., Inc., 842 So. 2d 975 (Fla. 2d D.C.A.), rev. denied, 853 So. 2d 1070 (Fla. 2003).
82 Woodard v. Jupiter Christian School, Inc., 913 So. 2d 1188 (Fla. 4th D.C.A. 2005), rev. granted, 924 So. 2d 812 (Fla. 2006), jurisdiction discharged, 2007 WL 4258366 (Fla. December 6, 2007).
83 Willis, 967 So. 2d 846 (Fla. 2007). (Pariente, J., concurring).
84 Watters v. Walgreen Co., 2007 WL 2456169 (Fla. 1st D.C.A. August 31, 2007).

Julie H. Littky-Rubin is a partner in the West Palm Beach office of Lytal, Reiter, Clark, Fountain & Williams, LLP. She was board certified by The Florida Bar in appellate practice in 2002.