Biology versus legality: how the definition of father 'impacts' Florida's impact rule.

• Author: Hiraldo, Manuel
• Position: Family Law

A pregnant woman is involved in an incident, possibly a slip and fall or a motor vehicle accident. She suffers blunt force trauma, causing the loss of her fetus. Under Florida law, the plaintiff parents may not pursue a cause of action for the death of the fetus pursuant to Florida's Wrongful Death Act. (1) The rationale for this rule is "that a fetus is not a 'person' within the meaning of the statute." (2) Rather, the law treats the death of the fetus as a physical injury to the plaintiff mother. (3) The Wrongful Death Act also prevents the parents from pursuing a loss of consortium claim. A claim for loss of companionship and affection of a child, otherwise known as a filial consortium claim, is limited to a child that has been born alive. (4)

Case law governing the plaintiff father's emotional distress claim is less established. Assume that the plaintiff father alleges a claim for negligent infliction of emotional distress against the defendant. Is there significance in the marital status of the couple at the time of the incident? Is it important whether the father witnessed the incident and injury to the mother? Does the law's definition of "father" affect the award he may receive under the impact rule? Why is the age of the fetus important? The answers to these questions will determine the application of Florida's impact rule to the father's emotional distress claim.

Florida's Impact Rule

Since the Florida Supreme Court's application of the rule on an ad hoc basis, the impact rule has been subject to much criticism. (5) Florida's impact rule provides:

[b]efore a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress injuries suffered must flow from personal injuries the plaintiff sustained in an impact. The rule actually requires some impact on the plaintiff or, in certain situations, the manifestation of severe emotional distress such as physical injuries illness. (6)

The requirement of a physical impact can be satisfied by almost any contact, "no matter how large or small, visible or invisible," with the plaintiff's body. (7) The rule was developed to limit "fictitious or speculative claims." (8)

The Florida Supreme Court has carved out certain exceptions to the impact rule. (9) Most significant for purposes of this discussion is the rule announced by the Florida Supreme Court in Champion v. Gray, 478 So. 2d 17 (Fla. 1985). In Champion, (10) the Florida Supreme Court held that a plaintiff who suffers physical injury resulting from emotional distress caused by witnessing an injury to a family member is permitted to maintain a cause of action for negligent infliction of emotional distress. In Zell v. Meek, 665 So. 2d 1048 (Fla. 1995), the plaintiff daughter was permitted to maintain a cause of action for negligent infliction of emotional distress as a result of witnessing her father's death, which was caused by a bomb that was planted in the father's apartment.

Champion and Zell established basic rules that the plaintiff claiming negligent infliction of emotional distress must 1) demonstrate a manifestation in the form of a physical injury as a result of the emotional distress suffered, and 2) be a witness to the incident. (11)

Florida appellate courts are split on whether the impact rule requires a legal relationship between the witness and the individual who is injured. (12) The Champion and Zell decisions seem to suggest that a legal or close family relationship is required, as both cases involved claims by immediate family members.

The Third and Fourth district courts of appeal require a legal relationship between the plaintiff and the injured party. (13) For example, in Ferretti v. Weber, 513 So. 2d 1333 (Fla. 3d DCA 1987), the Third District Court of Appeal affirmed the trial court's dismissal of an action seeking "recovery for physical and emotional injury resulting from the emotional impact of witnessing an automobile accident when the plaintiff's live in' ladyfriend was killed." (14) The First District Court of Appeal has specifically rejected the requirement of a legal relationship and has instead interpreted Champion and Zell as merely requiring a close personal relationship, which is to be treated as a question of fact for the jury's determination. (15) As discussed below, the split among the courts is significant in applying the impact rule to a claim by a father who is not married to the mother. If the couple is not married, the impact rule may preclude the father's claim.

Exception to...