9-6 Non-Economic Damages

• Jurisdiction: United States

9-6 Non-Economic Damages

Non-economic damages are not available in a legal malpractice suit. However, in Row-ell v. Holt,⁵⁶ the Florida Supreme Court carved out one very narrow exception when it answered the following question in the negative:

IN AN ACTION FOR LEGAL MALPRACTICE, DOES THE IMPACT RULE PRECLUDE RECOVERY OF NONECONOMIC DAMAGES WHEN THE UNCON-TROVERTED NEGLIGENT FAILURE TO DELIVER A DOCUMENT THAT WOULD HAVE PRODUCED THE IMMEDIATE RELEASE OF A PRETRIAL DETAINEE RESULTED IN A PROTRACTED PERIOD OF WRONGFUL PRE-TRIAL IMPRISONMENT WITH RESULTANT EMOTIONAL DISTRESS OR PSYCHOLOGICAL HARM, BUT NO PHYSICAL IMPACT?⁵⁷

The Court held that the impact rule requires "that before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries sustained in an impact."⁵⁸ Although the impact rule was deemed inapplicable to the specific facts outlined in the certified question,⁵⁹ the Court took pains to limit its holding by writing:

Furthermore, we deem untenable respondent's contention that our holding will implicate the entire spectrum of legal defense work, including claims of ineffective assistance of counsel, and we specifically state that such is not the field in which this decision flows. The instant case does not simply involve negligence arising from insufficient preparation, incomplete investigation, legal ineptitude, or any other subjective indicia of a lawyer's performance. . . . ln light of the unique facts of this case, we are satisfied that our holding here today will not—as respondent claims—subject defense attorneys to incessant second-guessing and excessive litigation.⁶⁰

Justice Pariente's specially concurring opinion called for the abolition of the impact rule.⁶¹ For the time being, however, the impact rule will, in almost all cases, bar an aggrieved party from recovering non-economic damages in a legal malpractice case.

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Notes:

^[56] Rowell v. Holt, 850 So. 2d 474 (Fla. 2003).

^[57] Rowell v. Holt, 850 So. 2d 474, 475-76 (Fla. 2003).

^[58] Rowell v. Holt, 850 So. 2d 474, 477-78 (Fla. 2003).

^[59] Rowell sued his public defender for failing to follow-up on a piece of exculpatory evidence. The oversight resulted in Rowell spending 10 days in jail until a second public defender rectified matters. For a further discussion of the facts, see Christine R Cooper, Comment, Taking Exception to Florida's Impact Rule When Attorney Negligence Results in a...