Posted By Alan Sackrin on October 22, 2015
Last Update: 12/29/15
Simply stated, accident victims can recover damages for emotional distress related to an accident (car accident, slip and fall, etc.). Florida law even allows loved ones who meet certain legal criteria to sue for “negligent infliction of emotional distress.”
However, for relatives and loved ones of the accident victim, there is a limitation: these damages can only be awarded in Florida if the emotional distress flows from the victim’s physically injuries which were caused by some type of impact. This rule also applies when an accident victim seeks emotional distress damages from the party causing the impact.
What Is The Impact Rule?
This rule is known as the “impact rule,” which requires the presentation of evidence that ties the claim for emotional distress to an event where the victim has been physically injured. If the victim cannot show bodily injuries resulting from an accident, then damages for emotional distress cannot be awarded in Florida.
In other words, no recovery is allowed for mental anguish or emotional pain and suffering if these damages cannot be tied by admissible evidence to a physical injury.
There’s a good reason that Florida courts use the impact rule which is to promote a public policy: it makes it easier for the court to sort the valid claims from the fake ones. By insisting upon a correlation between physical injuries and emotional distress claims, the court saves time and valuable resources.
Proving Emotional Distress Damages Under the Impact Rule
Florida courts do not require a heavy burden to award these damages. There need not be a tremendous “impact” in order for emotional distress damages to be awarded. If there is an outside force or substance, however small or slight, that touches or enters the victim’s body then the impact rule can be met. It doesn’t matter if the victim couldn’t see it at the time. It doesn’t matter if the victim did not feel its effect or harm at the time of the touch or entry.
“The essence of impact, then, it seems, is that the outside force or substance, no matter how large or small, visible or invisible, and no matter that the effects are not immediately deleterious, touch or enter into the plaintiff’s body.”
The Case of the Holiday Inn Parking Lot Mugging
In the Florida Supreme Court case that established the “impact rule,” Willis v. Gami Golden Glades, LLC., 967 So. 2d 846 (Fla. 2007), the court held that there was sufficient contact sustained by the plaintiff in that case to be defined as an “impact” that would allow emotional distress damages to be paid.
Here’s what happened. Marjorie Willis had booked a room at a Holiday Inn here in Florida, and when she drove her rental car into the hotel parking lot she couldn’t find a space – the lot was full. A hotel security guard told her to go and park in the hotel’s parking lot that was across the street from the hotel itself. Marjorie Willis was worried about this: she told the guard she was concerned because it was after dark, that parking lot was dark and not well-lit, and she didn’t know the neighborhood.
The hotel’s security guard reassured her that there wasn’t a problem, it was “safe to park next door” and told her to go ahead and park over there. He didn’t go with her. He didn’t park the car for her. He didn’t bother to watch her as she went.
Sure enough, when Marjorie Willis parked her car in that dark parking lot across the street from her hotel, and started to open her car door, she became a crime victim. A man stuck a gun to her head and told her to empty her pockets. She heard the gun click, as if he had pulled the trigger but no bullet was released. She couldn’t move, she was so terrified.
Then she began walking away from the car. The man waved the gun at her, telling her to come back. Then he told her to lift her clothing and he patted her down, touching her body. Next, he drove off in the car.
Marjorie Willis ran to the security guard for help. He did nothing. She went inside and asked hotel employees for help. They did nothing. She spent the night in the Holiday Inn hotel room she shared with a friend, unable to sleep, describing that night on the witness stand as one where she was in “agony” and “scared.”
Did Marjorie and Her Husband Have Emotional Damages?
The next morning, Marjorie Willis went to the local emergency room. From that time forward, she remained under the care of a psychiatrist and psychologist, diagnosed with anxiety, depression, panic attacks and post-traumatic stress disorder (PTSD). Her prescribed medications included Paxil, Buspar, Wellbutrin and Zoloft.
Marjorie Willis and her husband both testified as to how her life had changed since the event. So did her doctor. Her psychologist explained that physical manifestations resulting from the attack included: (1) sexual dysfunction; (2) peripheral temperature changes; (3) muscle tightening; and (4) increased sweat gland activity. The Willises testified that their lives were not the same after the event: their marriage had been harmed, her life “was nothing like it had been before this frightening experience.”
So, the couple sued the hotel and its security services company for damages. They won.
Did The Mugging Meet The Requirements Of The Impact Rule?
The Florida Supreme Court held that the Willises had meet their burden of proof insofar as the “impact rule” by evidence which showed that Mrs. Willis had “sustained multiple types of contact sufficient to qualify as an impact giving rise to a valid cause of action for emotional distress.”
These included her testimony that the gun had touched her left temple, as well as testimony that the man had touched her body under her clothes.
Do You Have a Claim for Negligent Infliction of Emotional Distress?
Whenever someone close to you is hurt in an accident, there may be ramifications for you as well as the accident victim. Both of you may have claims against the defendant for damages.
However, these claims are not easy to prove – for example, you must meet the “impact rule” – admissible evidence will need to be provided to the court for its consideration. You can bet that the insurance carrier and their defense lawyers will vigorously defend against an emotional distress claim as being unsupported by the evidence or even fake. An experienced Florida personal injury lawyer can be invaluable in helping you and your loved ones get justice.
What Should You Do Now?
A good piece of advice if you intend to purse an emotional distress claim is to talk with an experienced personal injury lawyer to discuss how most insurance companies will treat your claim and learn about some of the issues that can arise with these claims, including the type of evidence needed to prove a claim and the type and amount of damages you can recover. Most personal injury lawyers, like Alan Sackrin, will offer a free initial consultation (over the phone or in person) to answer your questions.
Do you have questions or comments? Then please feel free to send Alan an email or call him now at (954) 458-8655.