PBCBA BAR BULLETINS pbcba_bulletin_February 2019 - Page 13

PERSONAL INJURY C o r n e r Negligent Infliction of Emotional Distress TED BABBITT A cause of action for negligent infliction of emotional distress is an exception to the requirement of the impact rule which requires that before a psychic or emotional injury can be compensated, there must be actual physical impact caused by the defendant’s negligence. The requirement for an impact was required by the Florida Supreme Court in Gilliam v. Stuart , 291 So.2d 593 (Fla. 1974), which reversed the 4th District Court of Appeal in Stuart v. Gilliam , 271 So.2d 466 (Fla 4th DCA 1972), which allowed a cause of action for a woman who suffered a heart attack when a vehicle struck her home while she was in bed without causing a direct physical impact upon her. The requirement for an impact in a negligent infliction of emotional distress case was eroded by the Supreme Court of Florida in Champion v. Gray , 478 So.2d 17 (Fla. 1985). In that case, a drunken driver ran the plaintiff’s car off the road striking and killing Karen Champion. Karen’s mother, Joyce, heard the impact, came immediately to the accident scene, saw her daughter’s body, and was so overcome with shock and grief that she collapsed and died on the spot. See 5th District Court of Appeals in Champion v. Gray , 420 So.2d 348 (Fla. 5th DCA 1982) affirmed the dismissal of the complaint based on Gilliam, supra. In Champion, supra, the Supreme Court reversed at 18-19. The Supreme Court in Champion concluded: We now conclude, however, that the price of 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, is too great a harm to require direct physical contact before a cause of action exists. We emphasize the requirement that a causally connected clearly discernible physical impairment must accompany or occur within a short time of the psychic injury. The Supreme Court in Champion held that the following factors had to be considered: 1. Whether the plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. 2. Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. 3. Whether the plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. In Zell v. Meek , 665 So.2d 1048 (Fla. 1995), the Supreme Court was faced with the question of whether the Champion decision, supra, holding that the discernible physical impairment must occur within a “short time of the psychic injury” was an arbitrary limitation or whether it was another issue for the triar of fact to consider in deciding whether a cause of action should be recognized. In Zell, a daughter was in close proximity to her father’s death from the planting of a bomb but suffered her physical injuries resulting from that psychic trauma over a period of two years. Some of the physical manifestations occurred immediately and some were much further along the timeline. Meek put on her treating physician who testified that her esophageal contractions, fibromyalgia, dyspepsia and irritable bowel syndrome as well as insomnia, anxiety and depression all were related to the psychic trauma. In refusing to endorse an arbitrary time limit for the physical injuries to manifest themselves, the Court holds at 10-54: We think the fairer and more rational approach is to allow the time interval to be considered as part of the causation issue. Such a rule has long served us in ordinary “impact” cases, and we believe it to be the better rule here. While fraud and the difficulty in evaluating psychic claims may continue to trouble the court system, an arbitrary cutoff for negligent infliction of emotional distress claims would have no remedial purpose except to reduce the number of claims. PALMBEACHBAR.ORG 13 In fact, establishing an arbitrary cutoff for claims would contravene general public policy by denying persons with meritorious claims access to the courts. There have been a number of cases which have tested the parameters of the negligent infliction of emotional distress cause of action. In Watters v. Walgreen Co., 967 So.2d 930 (Fla. 2007), the issue of whether a step-father qualified for the familiar relationship required by the case law for a cause of action to exist. The trial court entered a summary judgment finding that it did not and the 1st District Court of Appeals reversed. Appellate courts have gone both ways on this question. In Ferretti v. Weber , 513 So. 2d 1333 (Fla. 3rd DCA 1987), the Appellate Court approved dismissal of a case where there was no marriage and therefore no legal relationship between the plaintiff and the decedent. In Reynolds v. State Farm , 611 So.2d 1294 (Fla. 4th DCA 1992), the Appellate Court found that the facts did not justify a familial relationship or a close attachment to the decedent. In reversing the dismissal, the Watters’ court concluded that the Ferretti and Reynolds cases were inconsistent with the “case by case” consideration of the relationship element as set forth in Zell, supra. In Elliott v. Elliott , 58 So.3d 878 (Fla. 1st Dist. 2011) the issue of what kind of physical injury had to be shown to have manifested (Con’t. on pg 19)