Negligent infliction of emotional distress: where are we now?

• Author: Leesfield, Ira H.
• Position: Florida

To best understand the current status of this cause of action, a historic perspective is helpful. The Florida Supreme Court recently reaffirmed that a discernible physical injury is required to state a claim for negligent infliction of emotional distress. See, e.g., Zell v. Meek, 665 So. 2d 1048 (Fla. 1995). Likewise, Florida continues to adhere to the "impact rule," while carving out certain exceptions due to public policy demands. These exceptions include actions for defamation,(1) invasion of privacy,(2) and wrongful birth.(3) The most important of these exceptions is a hybrid to what other jurisdictions call "the relative bystander test" where: 1) the plaintiff suffers a physical injury; 2) caused by psychological trauma; 3) of seeing, witnessing or otherwise being involved in some way, in the event causing the negligent injury to another; and 4) the plaintiff must have a close personal relationship to the directly injured person. Zell, 665 So. 2d at 1054.

The Impact Rule

From its inception, the impact rule barred recovery for purely psychological injuries, International Ocean Tel. Co. v. Sanders, 14 So. 148 (1893). The "impact rule" required that before a plaintiff could recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact. In Sanders, a telegraph company was 60 hours late in delivering a message to the plaintiff that his wife was dead or dying. The plaintiff initially stated a simple breach of contract case, but added a claim for the emotional distress, based upon his loss in assisting his ailing wife during her last hours. Without physical impact, the court reasoned that "pain of mind, and injury to feelings and affections" are beyond the reach of the courts to compensate. In other words, there was no way to mete out in hard currency what is spiritually intangible. Id. at 448.

The Supreme Court again addressed the issue of negligent infliction of emotional distress in Gilliam v. Stewart, 291 So. 2d 593 (Fla. 1974). In Stewart, the plaintiff was lying in her bed when she heard two cars collide, and ultimately felt the impact with the side of her home. She immediately went outside to see if anyone was hurt and let people come in to use her phone. Within 15 minutes, she went back to bed with chest pains. This case was distinguishable from Sanders, in that the plaintiff did suffer some discernible physical injury (a cardiac arrest); however, the injury was not the product of any prior physical impact. Accordingly, the court denied recovery.

The Champion Exception

In 1985, the Supreme Court revisited and revised the impact rule. In Champion v. Gray, 478 So. 2d 17 (Fla. 1985), a drunk driver ran off the road, killing Karen Champion. Tragically, her mother heard the impact and came to the scene of the accident. When she saw her daughter's body on the ground, grief overcame her and she died of shock alongside her daughter. The court held that no physical impact from an external force was required where the plaintiff suffered verifiable physical injuries (death). Without disapproving Stewart, the court fashioned a dichotomy between two distinct emotional circumstances. Id. at 19. The first case, as exemplified by Stewart, involves fear for one's own safety. The second instance centered on anxiety or stress for the injury or death of another. The court specifically restricted a cause of action to the second category. Relying upon public policy, the court modified the impact doctrine allowing recovery for negligent infliction of emotional distress without impact! Florida's highest court proclaimed that a cause of action exists when there is: 1) a significant discernible physical injury, 2) when such injury is caused by psychic trauma, 3) resulting from the negligent injury imposed on another, 4) who, because of his or her relationship to the injured party, and 5) his or her involvement in the event causing the injury, is foreseeably injured.

The threshold test is: 1) whether the plaintiff was at the scene of the accident as contrasted with one who is distanced from it; 2) whether the...