Florida's Impact Rule

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Florida’s Impact Rule

By Jaime E. Suarez

Florida's impact rule is a judicially-created rule designed to assure the validity of claims for emotional distress.1 In Florida, 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 sustained in an impact.”2 The impact rule is traditionally applied primarily as a limitation to assure a tangible validity of claims for emotional or psychological harm.3 “[T]he underlying basis for the rule is that allowing recovery for injuries resulting from purely emotional distress would open the floodgates for fictitious or speculative claims.”4
Florida courts have generally reasoned that the required flowing of emotional distress from physical injuries is necessary because, unlike physical injury, emotional harm “is difficult to prove, resultant damages are not easily quantified, and the precise cause of such injury can be elusive.”5 The Florida Supreme Court has also theorized that without the impact rule, Florida courts may be flooded with litigation based solely on psychological injury. See Gonzalez, 651 So.2d at 675.
Recently, the Florida Supreme Court has reviewed cases addressing the continued existence of the impact rule. In these cases, the Florida Supreme Court has consistently reaffirmed that the impact rule serves as an important safeguard when applied under certain proper circumstances in Florida’s judicial system.6
However, the Florida Supreme Court has also reasoned that the impact rule is not “an inflexible, unyielding rule of law, so sacred that it must be blindly followed without regard to context.”7

The court further stated in pertinent part:

If we were to ascribe such weight to the doctrine, the impact rule itself would exceed the parameters of its underlying justifications. Exceptions to the rule have been narrowly created and defined in a certain very narrow class of cases 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.8

Circumstances Where the Impact Rule Does Not Apply

Since its creation, the Florida Supreme Court has adhered to the impact rule, while creating limited exceptions in extraordinary circumstances. Under Florida law, intentional torts have been deemed exclusions from, as opposed to exceptions to, the impact rule.9 Furthermore, the impact rule does not apply to recognized intentional torts that result in predominantly emotional damages, including the intentional infliction of emotional distress.10
The Florida Supreme Court modified the impact rule in bystander cases by excusing the lack of a physical impact. In bystander cases, recovery for emotional distress is 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.’”11 Additionally, the Florida Supreme Court have held that the impact rule does not apply to claims for intentional infliction of emotional distress,12 wrongful birth,13 negligence claims involving stillbirth,14 and bad faith claims against an insurance carrier.15

Negligent Stillbirth

The Florida Supreme Court stated that parents of a stillborn child could recover damages for mental pain and anguish caused by the negligence of another, even in the absence of evidence that the stillbirth caused any physical impact or injury to the mother.16 Although the Florida Supreme Court reaffirmed the legitimacy and value of the “impact rule,” it carved out the following narrow exception in cases of negligent stillbirth, stating:
“[w]e recognize that there is a legitimate legal argument which can be directed against any particular theory upon which a recovery in the instant case might be predicated and that the law does not provide a remedy for every wrong. Yet, it is difficult to justify the outright denial of a claim for the mental pain and anguish which is so likely to be experienced by parents as a result of the birth of a stillborn child caused by the negligence of another. As a natural evolution of the common law, we conclude, […] that public policy dictates that an action by the parents for negligent stillbirth should be recognized in Florida.....
... We hold only that the impact rule is inapplicable to this narrow class of cases.”17
Moreover, in support of its decision the Florida Supreme Court quoted the reasoning from a New Jersey Supreme Court case addressing a parent’s anguish without the physical impact, quoting in pertinent part:
[m]edical malpractice causing a stillbirth results in infliction of a direct injury to the mother as well as to her unborn child. Even without any permanent physical harm, the mother suffers severe and genuine injuries in the form of emotional distress and mental anguish occasioned by her baby's stillbirth. This suffering is experienced, also, by the father of the infant. Thus, in a case such as this, the injury suffered by the mother and father on the stillbirth of their eagerly expected first child is palpable and predictable.18

Background Facts19

In 2000, Florida’s Fourth District Court of Appeal ruled that the payment of $2.5 million to each parent for their mental pain and anguish, was not excessive in light of the horrible way in which full-term, “unborn child” was killed moments before delivery. There the parents were in their 40’s and eagerly anticipated for the birth of their first child. The mother-to-be took care of herself during pregnancy, took prenatal vitamins, and had various tests performed on the fetus, which found that the baby was a boy who developing normally. In light of the news, the parents held a large baby shower, prepared the nursery, and named their unborn son.
The mother-to-be went into full-term labor. The defendant-doctor arrived when she began pushing to deliver the baby. When she was not able to give birth through the birth canal, the mother-to-be requested that the defendant-doctor perform a C-section. The defendant-doctor ridiculed the mother-to-be “by saying she was not pushing hard enough, she was a coward running from the pain, she was lazy, and she would never be a good mother because she could not push out the baby.” Furthermore, there was testimony during the trial that the defendant-doctor was “too busy flirting with the nurse to pay proper attention to the [mother-to-be].” Moments before delivery of this full-term
fetus, the defendant-doctor “misused a vacuum extractor and crushed the skull of the fetus, resulting in a stillbirth.”
The parents then brought a lawsuit alleging negligent stillbirth and seeking damages for their mental pain and anguish and for medical expenses incurred incident to the pregnancy. The jury awarded them $22,148 for past medical expenses, $4,455 for past expenses of a therapist, $10,500 for the future expenses of a therapist, and $2.5 million to each parent for their mental pain and anguish. On appeal, Florida’s Fourth District Court of Appeal affirmed the award reasoning that the parents’ “emotional commitment to the fetus before the stillbirth was relevant to establish the legitimacy of the mental pain and anguish they claimed after the stillbirth.”20

Conclusion

In conclusion, there is no cause of action for simple negligence resulting in psychological trauma, alone, unless the case fits within one of the narrow exceptions to the impact rule. For example, the impact rule does not apply to recognized intentional torts that result in predominantly emotional damages, including the intentional infliction of emotional distress. The Florida Supreme Court has also held that the impact rule does not apply to certain bystander claims, wrongful birth claims, negligence claims involving stillbirth, and bad faith claims against an insurance carrier.
1 See Int'l Ocean Tel. Co. v. Saunders, 32 Fla. 434, 14 So. 148 (1893).
2 Rowell v. Holt, 850 So.2d 474, 477-478 (Fla. 2003) (quoting R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995) (quoting Reynolds v. State Farm Mut. Auto. Ins. Co., 611 So.2d 1294, 1296 (Fla. 4th DCA 1992))).
3 See Rowell v. Holt, 850 So.2d at 478 (citing R.J., 652 So.2d at 363; Gonzalez v. Metro. Dade County Pub. Health Trust, 651 So.2d 673, 675 (Fla.1995); Kush v. Lloyd, 616 So.2d 415, 423 n. 5 (Fla.1992)).
4 See R.J. v. Humana of Florida, Inc., 652 So.2d 360, 362 (Fla.1995).
5 See Rowell v. Holt, 850 So.2d at 478 (citing R.J., 652 So.2d at 362).
6 See Rowell v. Holt, supra (citing e.g., R.J., 652 So.2d at 363; Gonzalez, 651 So.2d at 674-75).
7 See Id.
8 See Rowell v. Holt, supra (citing Tanner v. Hartog, 708 (Fla.1997); Kush, 616 So.2d at 422-23.
9 See Rowell v. Holt, supra n.1 (citing Eastern, 557 So.2d at 579 (Ehrlich, C.J., specially concurring) (reiterating that a physical manifestation of psychological trauma is not required in connection with intentional infliction of emotional distress)).
10 See Id. (citing Eastern Airlines, Inc. v. King, 557 So.2d 574, 576-77 (Fla.1990), defamation, see Miami Herald Publishing Co. v. Brown, 66 So.2d 679, 681 (Fla.1953), and invasion of privacy, see Cason v. Baskin, 155 Fla. 198, 20 So.2d 243, 251 (1944)).
11 See Hagan v. Coca-Cola, 804 So.2d 1234, 1237 (Fla. 2001) (quoting Champion v. Gray, 478 So.2d 17, 18 (Fla.1985); see also Zell v. Meek, 665 So.2d 1048 (Fla.1995) (reaffirming rule in bystander cases but rejecting temporal proximity requirement)).
12 See Hagan v. Coca-Cola, supra (citing Eastern Airlines, Inc. v. King, 557 So.2d 574 (Fla.1990)).
13 Id. (citing Kush v. Lloyd, 616 So.2d 415 (Fla.1992)).
14 Id. (citing Tanner v. Hartog, 696 So.2d 705 (Fla.1997)).
15 Id. (citing Time Ins. Co. v. Burger, 712 So.2d 389 (Fla.1998)).
16 See Kammer v. Hurley, 765 So.2d 975, 977 (Fla. 4th DCA 2000) (citing Tanner v. Hartog, 696 So.2d 705, 708 (Fla.1997)).
17 See Kammer v. Hurley, 765 So.2d at 977 (citing Tanner v. Hartog, 696 So.2d at 708 (Fla.1997)).
18 See Kammer v. Hurley, 765 So.2d at 977-978 (citing Tanner v. Hartog, 696 So.2d at 707 (quoting Giardina v. Bennett, 111 N.J. 412, 545 A.2d 139, 140 (1988))
19 The outline of facts is taken from Kammer v. Hurley, 765 So.2d 975, 976-977 (Fla. 4th DCA 2000).
20 Id. at 978.