So I finally understand the "impact rule" but why does It still exist?

• Author: Littky-Rubin, Julie H.
• Position: Florida

In reading the Florida Supreme Court's recent decision in Willis v. Gami Golden Glades, LLC, 967 So. 2d 846 (Fla. 2007), I was catapulted back to a chilly auditorium in Gainesville, back in December of 1990, taking my final exam in Professor Joe Little's Torts I class. Scanning the exam in a cold sweat, I remember eyeing a question that read something like: "What is the 'impact rule' and how is it applied in Florida?"

Back then, Professor Little was hoping to elicit some basic recognition that litigants could not generally recover for purely emotional injury. He was asking us to recall the one exception he had gone over in detail, in which a court had allowed a man to recover damages for the death of his wife after she suffered a fatal heart attack from the intense emotional devastation that occurred upon seeing the body of her daughter, who had just been killed by a drunk driver. (1)

In the 17 years since Professor Little's torts class, the Supreme Court has carved out numerous exceptions to the rule, and has provided many more opportunities for students to score bonus points on law school exams containing "impact rule" questions. Notwithstanding its numerous concurring and dissenting opinions, Willis finally provides some much needed clarity on how the Supreme Court expects lower courts to apply this ever-evolving, somewhat amorphous rule.

The Long and Tortured History of the Impact Rule

The impact rule has been firmly ensconced in American jurisprudence since an 1888 English decision. (2) Florida traces its particular impact rule roots back to the 1893 decision in International Ocean Telegraph Co. v. Saunders, 14 So. 148 (1893).

The International Ocean case arose when the plaintiff, Mr. Saunders, sued a telegraph company, for its failure to timely transmit an urgent telegram that came from a hospital, advising him that his wife was dying and he was needed at once. (3) While the company received the message on the morning of October 4, 1890--within an hour-and-a-half of the hospital sending it--the company did not deliver it to Mr. Saunders until over 60 hours later. (4) Sadly, by the time he received the telegram, his wife had been dead for over 10 hours. (5)

Mr. Saunders sued the telegraph company for the "mental suffering and disappointment in not being able to attend upon his wife in her last moments, and to be present at her funeral." (6) The jury awarded him $1,995 for his anguish. (7) The Supreme Court, however, refused to agree that he had a right to recover under these circumstances. (8) In rejecting Mr. Saunders' claim, the court wrote:

The resultant injury is one that soars so exclusively within the realms of spirit land that it is beyond the reach of the courts to deal with, or to compensate by any of the known standards of value. It presents a class of cases where legislative action fixing some standard of recovery would be highly appropriate; but, until this action is taken, we do not feel that the courts are authorized to so widely diverge from the circumscribed limits of judicial action as to undertake to mete out compensation and money for the spiritually intangible. (9)

For years, litigants quietly accepted that pure emotional damage negligently inflicted without "physical" injury was not compensable. In 1972, however, the Fourth District wrote an opinion rejecting this draconian rule. (10) In Stewart v. Gilliam, 271 So. 2d 466 (Fla. 4th DCA 1972), the Fourth District questioned why Florida insisted on clinging to the impact rule, even as other jurisdictions had abandoned it. (11)

In Stewart, a woman laying in her bed, heard a crash at an intersection near her home, and then heard a second crash of the cars actually striking her house. (12) When she went to her front porch and saw the defendant's car against her house with steam coming out of the radiator, she immediately began to experience chest pains, and shortly thereafter suffered a myocardial infarction. (13)

The Fourth District believed that under such circumstances, Mrs. Stewart had a right to recover for the damages she suffered, notwithstanding that she had not experienced any physical impact. (14) The court then boldly rejected the impact rule, urging the Supreme Court to follow its trailblazing lead, and asked that the state align itself with the overwhelming majority of jurisdictions which had either abandoned or refused to adopt the rule. (15)

The Supreme Court accepted jurisdiction to answer the question of whether Florida should abolish the impact rule, and promptly admonished the Fourth District, that intermediate appellate courts--no matter how well intentioned--lack the authority to overrule ancient precedent. (16) The court then punctuated its admonition by reversing the Fourth District's opinion and holding that there was no valid justification to recede from the impact rule. (17)

Eleven years later, however, in Champion v. Gray, 478 So. 2d 17 (Fla. 1985), the Supreme Court again revisited the oft-posed question about whether Florida should abrogate its impact rule. In a case with facts very similar to those in Stewart, the Fifth District had asked the court to decide whether Florida courts should allow recovery for physical consequences that result from the mental and/or emotional stress caused by the defendant's negligence, even when there is no physical impact to the plaintiff. (18)

Champion involved a drunk driver, who ran his car off the road and killed a young woman pedestrian. The young woman's mother heard the impact and immediately ran to the accident scene. (19) In seeing her daughter's body, the mother was so overcome with shock and grief, that she collapsed and died on the spot. (20)

The father then brought an action for damages caused by the driver's negligence which led to the death of his wife. (21) The Supreme Court again wrestled with the previously unyielding impact rule. This time, though, it decided that 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, did indeed present a great harm. (22) It further found that because that harm was so significant, it was unnecessary to require direct physical contact as a condition precedent to a cause of action. (23)

The Champion court noted that the impact doctrine gives practical recognition to the notion that there is some level of harm which each person has to absorb without recompense...