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Florida’s Impact Rule: Breaking Down A Confusing Line Drawn To Limit Damages For Emotional Distress

A loving grandmother offers to help her son and daughter-in-law by caring for her granddaughter for the day and picking up her two grandsons from soccer practice that afternoon.  As the careful and cautious grandmother turns right into the parking lot with her granddaughter in the back seat wearing her seat belt, the grandmother’s car is suddenly struck on the driver’s side by a drunk driver who speeds through a red light.  Tragically, the grandmother dies at the scene. Her granddaughter has suffered bruises from the impact of the crash, but is otherwise fine physically. Unfortunately, the younger grandson saw his grandmother approaching and was running out to the car in the parking lot when he saw the crash.  When he reached the car, he tried to revive his grandmother, and became physically ill when he realized she had passed.  The older grandson was playing with friends, did not see the accident and came onto the scene minutes later after hearing sirens, and only saw his grandmother being taken out of the car.  None of the grandchildren have compensable claims under Florida’s Wrongful Death statute.  Obviously, all of the grandchildren suffered significant psychological injury as a result of the horrible accident.  Do they all have viable claims to recover for their emotional distress under Florida’s Impact Rule?

Florida’s Judiciary created its Impact Rule in order to set parameters establishing the validity of claims for emotional distress.  The policy justification is that without some limitation on recoverable damages for emotional distress, Florida courts would be flooded with litigation based solely on psychological injury.

Somewhat confusingly, under Florida law, the Impact Rule does not apply in cases where the claimant has suffered some type of physical impact.  See Willis v. Gami Golden Glades, LLC, 967 So.2d 846 (Fla. 2007).  Basically, if there is impact, no matter how slight, even if it is a mere “touching,” then there can be recovery for emotional injury.  Accordingly, with respect to the granddaughter who was involved in the accident and suffered bruises as a result, Florida’s Impact Rule does not apply, and she has an actionable claim for the emotional distress she suffered as a result of the tragic accident.

The younger grandson, who did not suffer any impact, but became physically ill as a result of witnessing the accident in close proximity as it occurred, also has an actionable claim under Florida law.  InZell v. Meek, 665 So.2d 1048, 1050 note 1 (Fla. 1995), the Florida Supreme Court cited with approval Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517, 526 (Fla. 3d DCA 1985), which held that, “if, however, the plaintiff has not suffered an impact, the complained of mental distress must be ‘manifested by physical injury,’ the plaintiff must be ‘involved’ in the accident by seeing, hearing, or arriving on the scene as the traumatizing event occurs, and the plaintiff must suffer the complained of mental distress and accompanying physical impairment ‘within a short time’ of the incident.”  In our hypothetical example, the younger grandson meets the parameters set forth by the Florida Supreme Court.  The disturbing question is whether the younger grandson would still have a claim under the circumstances if he had not become physically ill because of what he had seen and had not suffered some contemporaneous physical injury resulting from his emotional distress.  The answer under these circumstances is less clear.

Lastly, unfortunately, the older grandson likely would not have a claim because he suffered no impact, he was not closely “involved” in the accident by seeing, hearing or arriving on the scene as the traumatizing event occurred, and he did not suffer any physical manifestation of his emotional distress.

From a policy perspective, when such an awful tragedy occurs that clearly causes severe emotional distress to so many, there has to be some limitation on who may bring a claim for those psychological injuries.  Although confusing, and subject to many exceptions, Florida’s Impact Rule is the Judiciary’s attempt at drawing that line.  Partly because there are numerous exceptions to Florida’s Impact Rule based on specific circumstances, it is important to consult an attorney should a situation involving psychological injury and Florida’s Impact Rule arise.

A loving grandmother offers to help her son and daughter-in-law by caring for her granddaughter for the day and picking up her two grandsons from soccer practice that afternoon.  As the careful and cautious grandmother turns right into the parking lot with her granddaughter in the back seat wearing her seat belt, the grandmother’s car is suddenly struck on the driver’s side by a drunk driver who speeds through a red light.  Tragically, the grandmother dies at the scene. Her granddaughter has suffered bruises from the impact of the crash, but is otherwise fine physically. Unfortunately, the younger grandson saw his grandmother approaching and was running out to the car in the parking lot when he saw the crash.  When he reached the car, he tried to revive his grandmother, and became physically ill when he realized she had passed.  The older grandson was playing with friends, did not see the accident and came onto the scene minutes later after hearing sirens, and only saw his grandmother being taken out of the car.  None of the grandchildren have compensable claims under Florida’s Wrongful Death statute.  Obviously, all of the grandchildren suffered significant psychological injury as a result of the horrible accident.  Do they all have viable claims to recover for their emotional distress under Florida’s Impact Rule?

Florida’s Judiciary created its Impact Rule in order to set parameters establishing the validity of claims for emotional distress.  The policy justification is that without some limitation on recoverable damages for emotional distress, Florida courts would be flooded with litigation based solely on psychological injury.

Somewhat confusingly, under Florida law, the Impact Rule does not apply in cases where the claimant has suffered some type of physical impact.  See Willis v. Gami Golden Glades, LLC, 967 So.2d 846 (Fla. 2007).  Basically, if there is impact, no matter how slight, even if it is a mere “touching,” then there can be recovery for emotional injury.  Accordingly, with respect to the granddaughter who was involved in the accident and suffered bruises as a result, Florida’s Impact Rule does not apply, and she has an actionable claim for the emotional distress she suffered as a result of the tragic accident.

The younger grandson, who did not suffer any impact, but became physically ill as a result of witnessing the accident in close proximity as it occurred, also has an actionable claim under Florida law.  InZell v. Meek, 665 So.2d 1048, 1050 note 1 (Fla. 1995), the Florida Supreme Court cited with approval Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517, 526 (Fla. 3d DCA 1985), which held that, “if, however, the plaintiff has not suffered an impact, the complained of mental distress must be ‘manifested by physical injury,’ the plaintiff must be ‘involved’ in the accident by seeing, hearing, or arriving on the scene as the traumatizing event occurs, and the plaintiff must suffer the complained of mental distress and accompanying physical impairment ‘within a short time’ of the incident.”  In our hypothetical example, the younger grandson meets the parameters set forth by the Florida Supreme Court.  The disturbing question is whether the younger grandson would still have a claim under the circumstances if he had not become physically ill because of what he had seen and had not suffered some contemporaneous physical injury resulting from his emotional distress.  The answer under these circumstances is less clear.

Lastly, unfortunately, the older grandson likely would not have a claim because he suffered no impact, he was not closely “involved” in the accident by seeing, hearing or arriving on the scene as the traumatizing event occurred, and he did not suffer any physical manifestation of his emotional distress.

From a policy perspective, when such an awful tragedy occurs that clearly causes severe emotional distress to so many, there has to be some limitation on who may bring a claim for those psychological injuries.  Although confusing, and subject to many exceptions, Florida’s Impact Rule is the Judiciary’s attempt at drawing that line.  Partly because there are numerous exceptions to Florida’s Impact Rule based on specific circumstances, it is important to consult an attorney should a situation involving psychological injury and Florida’s Impact Rule arise.

©Lowndes, Drosdick, Doster, Kantor & Reed, PA, 2022. All rights reserved.National Law Review, Volume , Number 296
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About this Author

James Toscano, personal injury, intellectual property, attorney, Lowndes, law
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Jim Toscano is a litigator concentrating on general commercial litigation, personal injury and wrongful death, intellectual property and intellectual property litigation.

407-418-6260
Terry Young, litigation, attorney, Lowndes, law firm
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Terry Young has tried over 50 jury trials to verdict and more than 200 non-jury trials. He has more than 30 years of experience – in local, state and Federal courts – ranging from disputes over United States presidential elections to multi-national "bet-the-company" litigation, from high profile divorces to multi-million-dollar personal injury cases, from complex contract disputes to first amendment defenses.

Whether a public persona or a private family, a major corporation or a fledgling new venture, Terry represents both plaintiffs and defendants, from counseling through trial and...

407-418-6347
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