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
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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)