Emotional Distress, Negligent Infliction -

[1] Elements and Case Citations

(1) Plaintiff must suffer physical injury (impact);

(2) Plaintiff’s physical injury must be caused by the psychological trauma;

(3) Plaintiff must be involved in some way in the event causing the injury to another; and

(4) Plaintiff must have a close personal relationship to directly injured person.

The impact rule is not applicable when the plaintiff suffers discriminate physical injury caused by emotional distress arising from plaintiff's witnessing the death or injury of a loved one. Champion v. Grey, 478 So. 2d 17, 18-20 (Fla. 1985). The impact rule is also not applicable in wrongful birth actions. Kush v. Lloyd, 616 So. 2d 415, 422-423 (Fla. 1992). The impact rule does not apply when a laboratory or other health care provider is negligent in failing to keep confidential the results of an HIV test. Fla. Dep't of Corrections v. Abril, 969 So. 2d 201, 208 (Fla. 2007). Nor is physical impact required when the wrongful act was perpetrated with malice. Kirksey v. Jernigan, 45 So. 2d 188, 189 (Fla. 1950). Temporal proximity, as opposed to being an absolute inflexible requirement, should be utilized simply as a relevant factor to be considered in a factfinder's determination of whether a person has sustained a physical injury as a result of a psychic trauma. Zell v. Meek, 665 So. 2d 1048, 1053-1055 (Fla. 1995).

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Florida State Courts

Supreme Court: Fla. Dep't of Corrections v. Abril, 969 So. 2d 201, 206 (Fla. 2007)

Florida Federal Courts

Eleventh Circuit: Bodine v. Federal Kemper Life Assurance Co., 912 F.2d 1373, 1376 (11th Cir. 1990), cert. denied, 499 U.S. 905 (1991)

Southern District: Kingston Square Tenants Assoc. v. Tuskegee Gardens LTD., 792 F. Supp. 1566, 1576 (S.D. Fla. 1992)

Middle District: Geidel v. City of Bradenton Beach, 56 F. Supp. 2d 1359, 1367, 1368 (M.D. Fla. 1999)

References

Restatement (Second) of Torts § 313 (1965)

[2] Defenses to Claim for Negligent Infliction of Emotional Distress

(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 60.

(2) Statute of Limitations: § 95.11(3)(o), (p), Fla. Stat. (four years); see Ross v. Twenty-Four Collection, 617 So. 2d 428, 428 (Fla. 3d DCA 1993).

(3) The impact rule dictates that a plaintiff cannot assert a claim for emotional distress absent a showing that the emotional distress flowed from injuries sustained in a physical impact. R.J. v. Humana, Inc., 652 So. 2d 360, 363 (Fla. 1995); but see Hagan v. Coca-Cola Bottling Co., 804 So. 2d 1234 (Fla. 2001)(allowing claim for emotional distress based on ingestion of contaminated food or beverage absent physical impact).

(4) The assertion of legal rights in a legally permissible manner constitutes a privilege that precludes an action based on reckless or even outrageous conduct. See Canto v. J.B. Ivey and Co., 595 So. 2d 1025, 1028 (Fla. 1st DCA 1992).

(5) A successful defense of privilege to a defamation claim will also preclude a claim for negligent infliction of emotional distress when the latter is premised on an allegedly defamatory publication. See Fridovich v. Fridovich, 598 So. 2d 65, 70 (Fla. 1992).

(6) “[I]impact rule is inapplicable in cases in which a psychotherapist has created a fiduciary relationship and has breached a statutory duty of confidentiality to his or her patient." Gracey v. Eaker, 837 F. Supp. 2d 348, 358 (Fla. 2002)(emphasis added).

(7) To recover damages for emotional distress resulting from negligent hiring, supervision or retention, a plaintiff must show that the suffered emotional stress flowed from injuries sustained in an impact. Perez v. Pavex Corp., 2002 WL 31500404, *3 (M.D. Fla. 2002).