STORY TOOLS

• E-mail story
• iPod friendly
• Printer friendly

Tell us about it

• What would you add to this story? Tell us what we missed.
• Do you have photos from this event? Documents we need to see? Share with us.
• Upload photos & videos
• More ways to get your stuff online and in the paper.

More It's the Law

• It's The Law: Learn about the new custody provisions in Florida
• It's the law: Can attorney fees be recovered after a legal suit?
• It's the law: Personal injury award can be divided in divorce case

Share and Enjoy [?]

Q: My mother died in an automobile accident. I am really upset about it and want to sue for my emotional distress. Do I have a good claim under Florida law?

A: To recover for emotional distress in negligence cases, Florida generally follows what is known as the “impact rule.” The impact rule was inherited as part of the common law of England.

Under the impact rule, a plaintiff could not recover damage for emotional distress caused by someone else’s negligence unless the emotional distress has its source in a physical injury caused by impact to the plaintiff.

Florida’s Supreme Court confirmed that was the law in Florida in the 1893 case of International Ocean Tel Co. v. Saunders. In that case, the telegraph company was 60 hours late delivering a message to the plaintiff that his wife was dead or dying. The plaintiff sued for emotional distress and Florida’s Supreme Court explained that without physical impact, pain for emotional distress and affection could not be compensated.

The Supreme Court rejected efforts to create exceptions to the impact rule. In the 1974 case of Gilliam v. Stewart, a woman was lying in bed when she heard an automobile accident outside of her home. She went outside to see if anyone was hurt and within a few minutes went back to bed with chest pains. She argued that she did have physical injury, but the court ruled that it was not the result of negligent physical impact.

In 1985, the Supreme Court decided the impact rule had to be changed. In the case of Champion v. Grey, a drunk driver drove off the road and killed Karen Champion. Her mother heard the accident and went to the scene. When she saw her dead daughter, she died of shock.

Although the woman did not suffer from the physical accident, the court created an exception where physical harm results from anxiety or stress over someone else’s injuries.

The court limited the exception to circumstances where the plaintiff was at the scene of the accident, the emotional distress was caused by seeing the accident, as opposed to learning about the accident after it happened and where the plaintiff and the person injured in the accident were closely related.

The court explained that the reason for the impact rule was to prevent fictitious or speculative claims. Under the limited exception of the Champion case, the court felt that the potential for fraud was outweighed by the need to provide recovery for actual injury.

In later cases, Florida courts have reaffirmed the impact rule and refused to create additional exceptions. In 1989, the Florida Supreme Court refused to allow recovery for intentional infliction of emotional distress where a patient was misdiagnosed as HIV positive. The court explained that the impact rule required more than ordinary testing, taking of blood or touching of a patient by a doctor and that the person claiming emotional distress did not suffer any more invasive medical treatment. The court left open the door to recover where more invasive medical treatment or prescriptions were involved.

In 1995, the Supreme Court rejected a claim for emotional distress caused by negligent handling of a corpse. In that case, hospital and funeral home apparently buried a dead infant but a few months later the hospital advised the parents that the infant’s body was still in a refrigerated drawer at the hospital morgue. The parents urged the court to adopt an exception to the impact rule where the claim involved negligent mishandling of a corpse. The court declined their request.

In a more recent case, parents of a deceased infant buried in an unlawfully shallow grave, brought a negligence action against the cemetery. The appellate court held that the impact rule would bar recovery. However, it pointed out the impact rule does not apply to all emotional distress claims.

Where emotional distress is caused by willful and wanton action of a wrongdoer, the impact rule does not apply. The appellate court sent the case back to the trial court to determine if the actions of the cemetery were willful and wanton. If so, the impact rule would not apply and damages could be awarded for emotional distress.

Unless the circumstances of your case fall within a limited exception to the impact rule, you may have a difficult position. However, you may have other claims involving your damages and you may be able to prove that the action causing your emotion distress was willful and wanton. You should discuss the circumstances of your case with an experienced attorney as soon as possible.

---

William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@earthlink.net or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.