impact rule in Florida

2023See R.J. v. Humana of Fla., Inc., 652 So. 2d 360, 362-63 (Fla. 1995) (“The impact rule has had a long legal history in this state, beginning with this Court’s decision in International Ocean”).

2023See Kirksey v. Jernigan, 45 So. 2d 188, 189 (Fla. 1950) (“This court is committed to the rule, and we re-affirm it herein, that there can be no recovery for mental pain and anguish unconnected with physical injury in an action arising out of the negligent breach of a contract whereby simple negligence is involved.” (emphasis added)); Champion v. Gray, 478 So. 2d 17, 18 (Fla. 1985) (discussing “the longstanding Florida rule that a plaintiff must suffer a physical impact before recovering for emotional distress caused by the negligence of another” (emphasis added)); R.J., 652 So. 2d at 362 (“In

2023In other instances, the Court has stated that “the impact rule does not apply where emotional damages are a consequence of conduct that itself is a freestanding tort apart from any emotional injury.” Hagan v. Coca-Cola Bottling Co., 804 So. 2d 1234, 1241 (Fla. 2001) (quoting Tanner, 696 So. 2d at 708 (quoting Kush, 616 So. 2d at 415 )).

2023For this assertion, the majority relies on language from the Florida Supreme Court in Kush v. Lloyd, 616 So. 2d 415, 422 (Fla. 1992): However, we are not certain that the impact doctrine ever was intended to be applied to a tort such as wrongful birth.

2024See Reid v. Daley, 276 So. 3d 878 , 880-881 (Fla. 1st DCA 2019) (applying the impact rule where Appellant’s harm was emotional in nature and the very limited exception to the impact rule established in Rowell v. Holt, 850 So. 2d 474 (Fla. 2003) did not apply).

2023Health Tr., 651 9 So. 2d 673 , 674 (Fla. 1995) (“The ‘impact doctrine’ which evolved from the common law of England, requires that a plaintiff sustain actual physical impact in order to recover for the negligent infliction of emotional distress.” (emphasis added)); Tanner v. Hartog, 696 So. 2d 705, 707 (Fla. 1997) (“Generally stated, the impact rule requires that before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional stress suffered must flow from physical injuries the plaintiff sustained in an impact.” (emphasis added)); Gracey v. Eake

2023See Zell v. Meek, 665 So. 2d 1048 , 1053 n.7 (Fla. 1995). 12 we were to ascribe such weight to the doctrine, the impact rule itself would exceed the parameters of its underlying justifications.

2020“The impact rule, as applied in Florida, 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 the plaintiff sustained in an impact.’” Fla. Dep’t of Corr. v. Abril, 969 So. 2d 201, 206 (Fla. 2007) (quoting R.J. v. Humana of Fla., Inc., 652 So. 2d 360, 362 (Fla. 1995)). “[N]o impact need be shown where psychological trauma could be demonstrated to cause a demonstrable physical injury,” but the rule bars recovery for purely “psychic injuries resulting from such trauma.” Ze

2023Health Tr., 651 9 So. 2d 673 , 674 (Fla. 1995) (“The ‘impact doctrine’ which evolved from the common law of England, requires that a plaintiff sustain actual physical impact in order to recover for the negligent infliction of emotional distress.” (emphasis added)); Tanner v. Hartog, 696 So. 2d 705, 707 (Fla. 1997) (“Generally stated, the impact rule requires that before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional stress suffered must flow from physical injuries the plaintiff sustained in an impact.” (emphasis added)); Gracey v. Eake

2023In other instances, the Court has stated that “the impact rule does not apply where emotional damages are a consequence of conduct that itself is a freestanding tort apart from any emotional injury.” Hagan v. Coca-Cola Bottling Co., 804 So. 2d 1234, 1241 (Fla. 2001) (quoting Tanner, 696 So. 2d at 708 (quoting Kush, 616 So. 2d at 415 )).

2023See Kirksey v. Jernigan, 45 So. 2d 188, 189 (Fla. 1950) (“This court is committed to the rule, and we re-affirm it herein, that there can be no recovery for mental pain and anguish unconnected with physical injury in an action arising out of the negligent breach of a contract whereby simple negligence is involved.” (emphasis added)); Champion v. Gray, 478 So. 2d 17, 18 (Fla. 1985) (discussing “the longstanding Florida rule that a plaintiff must suffer a physical impact before recovering for emotional distress caused by the negligence of another” (emphasis added)); R.J., 652 So. 2d at 362 (“In

2007See Zell, 665 So.2d at 1052 (noting that Champion "retreated from our strict adherence to the impact rule" in those limited circumstances); Champion, 478 So.2d at 18 (holding that a bystander closely related to the directly injured person can recover upon a showing of "significant discernible physical injury").

2023Health Tr., 651 9 So. 2d 673 , 674 (Fla. 1995) (“The ‘impact doctrine’ which evolved from the common law of England, requires that a plaintiff sustain actual physical impact in order to recover for the negligent infliction of emotional distress.” (emphasis added)); Tanner v. Hartog, 696 So. 2d 705, 707 (Fla. 1997) (“Generally stated, the impact rule requires that before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional stress suffered must flow from physical injuries the plaintiff sustained in an impact.” (emphasis added)); Gracey v. Eake

2023See Gracey, 837 So. 2d at 356-57 (holding that the impact rule should not bar recovery of emotional distress damages in an action for negligent breach of a duty of confidentiality as to the release of sensitive personal information because “[t]he emotional distress that [plaintiffs] allege they have suffered is at least equal to that typically suffered by the victim of a defamation or an invasion of privacy”); Abril, 969 So. 2d at 207-08 (“Because the only reasonable damages arising from a breach of [the statute governing confidentiality of HIV test results] are emotional distress, and because

2023Health Tr., 651 9 So. 2d 673 , 674 (Fla. 1995) (“The ‘impact doctrine’ which evolved from the common law of England, requires that a plaintiff sustain actual physical impact in order to recover for the negligent infliction of emotional distress.” (emphasis added)); Tanner v. Hartog, 696 So. 2d 705, 707 (Fla. 1997) (“Generally stated, the impact rule requires that before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional stress suffered must flow from physical injuries the plaintiff sustained in an impact.” (emphasis added)); Gracey v. Eake

2023See Gracey, 837 So. 2d at 356-57 (holding that the impact rule should not bar recovery of emotional distress damages in an action for negligent breach of a duty of confidentiality as to the release of sensitive personal information because “[t]he emotional distress that [plaintiffs] allege they have suffered is at least equal to that typically suffered by the victim of a defamation or an invasion of privacy”); Abril, 969 So. 2d at 207-08 (“Because the only reasonable damages arising from a breach of [the statute governing confidentiality of HIV test results] are emotional distress, and because

2007See, e.g., Zell v. Meek, 665 So.2d 1048 , 1053 n. 7 (Fla.1995) (noting that in International Ocean Telegraph Co. v. Saunders, 32 Fla. 434 , 14 So. 148 (1893), our earliest case involving negligent infliction of emotional distress, "we required proof of a concomitant physical injury as a safeguard"); R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362, 364 (Fla.1995) (holding that "damages for emotional harm as a result of a misdiagnosis cannot be recovered without a showing of some physical injury," because "intangible, mental injuries are insufficient to meet the physical injury required under t

2007See Humana, 652 So.2d at 364 ("[M]ental injuries are insufficient to meet the physical injury required under the impact rule."); see also Welker, 908 So.2d 317, 320 ; Rowell, 850 So.2d at 477-78 ; Burger, 712 So.2d at 393 ; Tanner, 696 So.2d at 707 ; Brown, 468 So.2d at 904 ; Clark, 107 So.2d at 611-12 ; Macurda, 93 So.2d at 861 (all noting the physical injury requirement).

2023In other instances, the Court has stated that “the impact rule does not apply where emotional damages are a consequence of conduct that itself is a freestanding tort apart from any emotional injury.” Hagan v. Coca-Cola Bottling Co., 804 So. 2d 1234, 1241 (Fla. 2001) (quoting Tanner, 696 So. 2d at 708 (quoting Kush, 616 So. 2d at 415 )).

2023As discussed above, assuming the Florida Supreme Court’s holdings place intentional torts within the scope of the impact rule as a general matter, the Florida Supreme Court has stated that the impact rule does not apply to two categories of torts: (1) torts that result in predominantly emotional damages, including the intentional infliction of emotional distress, defamation, and invasion of privacy, Rowell, 850 So. 2d at 478 n.1; and (2) torts “where emotional damages are a consequence of conduct that itself is a freestanding tort apart from any emotional injury.” Hagan, 804 So. 2d at 1241 (qu

2007Crane v. Loftin, 70 So.2d 574 (Fla.1954) (affirming granting of a motion to dismiss); Gilliam v. Stewart, 291 So.2d 593 (Fla.1974) (affirming a summary judgment); R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla.1995) (setting forth what must be alleged in respect to the impact rule as a rule of law on deciding a motion to dismiss).

2003While we are cognizant of precedent suggesting that the impact doctrine properly reflects the principle that "[t]here must be some level of harm which one should absorb without recompense as the price he pays for living in an organized society," Gonzalez, 651 So.2d at 675 (quoting Stewart v. Gilliam, 271 So.2d 466, 477 (Fla. 4th DCA 1972) (Reed, C.J., dissenting), quashed, 291 So.2d 593 (Fla.1974)), we believe that Rowell paid too high a price with his pretrial liberty to be forced to forego compensation based upon rigid application of a limiting doctrine, and that the jury award reasonably re

2003While we are cognizant of precedent suggesting that the impact doctrine properly reflects the principle that "[t]here must be some level of harm which one should absorb without recompense as the price he pays for living in an organized society," Gonzalez, 651 So.2d at 675 (quoting Stewart v. Gilliam, 271 So.2d 466, 477 (Fla. 4th DCA 1972) (Reed, C.J., dissenting), quashed, 291 So.2d 593 (Fla.1974)), we believe that Rowell paid too high a price with his pretrial liberty to be forced to forego compensation based upon rigid application of a limiting doctrine, and that the jury award reasonably re

1995As Judge Reed explained in his dissenting opinion in Stewart v. Gilliam, 271 So.2d 466 (Fla. 4th DCA 1972), quashed 291 So.2d 593 (Fla. 1974), [t]here is more underlying the impact doctrine than simply problems of proof, fraudulent claims, and excessive litigation.

2023See Kirksey v. Jernigan, 45 So. 2d 188, 189 (Fla. 1950) (“This court is committed to the rule, and we re-affirm it herein, that there can be no recovery for mental pain and anguish unconnected with physical injury in an action arising out of the negligent breach of a contract whereby simple negligence is involved.” (emphasis added)); Champion v. Gray, 478 So. 2d 17, 18 (Fla. 1985) (discussing “the longstanding Florida rule that a plaintiff must suffer a physical impact before recovering for emotional distress caused by the negligence of another” (emphasis added)); R.J., 652 So. 2d at 362 (“In

2023In Kirksey, an intentional tort case in which the Florida Supreme Court declined to apply the impact rule, the plaintiff sued an undertaker for wrongfully taking the body of the plaintiff’s deceased child without permission and then refusing to return the body after the plaintiff demanded it. 45 So. 2d at 189 .

2020The trial court entered summary judgment for the hospital based in part on the impact rule. 2 Eventually, the case made its way to the Florida Supreme Court, which was asked to entertain whether it should adopt a provision of the Restatement (Second) of Torts and recede from case law holding that “the law of Florida will not sustain an action for mental anguish caused by negligent handling of a dead body in the absence of physical injury.” Id. at 673 .

2016Health Trust, 651 So. 2d 673 (Fla. 1995) (creating an exception for negligent handling of a corpse); Kush, 616 So. 2d at 423 (holding the impact rule was inapplicable to a parent’s claim for wrongful birth of their severely deformed child). 15 These cases establish a strong precedential authority for an exception in this case.

2025The supreme court has emphasized that the impact rule “has no application” when “an impact or touching has occurred.” Willis, 967 So. 2d at 850 .

2023Health Tr., 651 9 So. 2d 673 , 674 (Fla. 1995) (“The ‘impact doctrine’ which evolved from the common law of England, requires that a plaintiff sustain actual physical impact in order to recover for the negligent infliction of emotional distress.” (emphasis added)); Tanner v. Hartog, 696 So. 2d 705, 707 (Fla. 1997) (“Generally stated, the impact rule requires that before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional stress suffered must flow from physical injuries the plaintiff sustained in an impact.” (emphasis added)); Gracey v. Eake

2023One of the clearest, recent holdings of the Florida Supreme Court regarding the scope of the impact rule is as follows: 30 The impact rule does not apply to recognized intentional torts that result in predominantly emotional damages, including the intentional infliction of emotional distress, see Eastern Airlines, Inc. v. King, 557 So. 2d 574 , 576–77 (Fla.1990), defamation, see Miami Herald Publishing Co. v. Brown, 66 So. 2d 679, 681 (Fla.1953), and invasion of privacy, see Cason v. Baskin, 155 Fla. 198 , 20 So. 2d 243, 251 (1944).

2003NOTES [1] The impact rule does not apply to recognized intentional torts that result in predominantly emotional damages, including the intentional infliction of emotional distress, see Eastern Airlines, Inc. v. King, 557 So.2d 574, 576-77 (Fla.1990), defamation, see Miami Herald Publishing Co. v. Brown, 66 So.2d 679, 681 (Fla.1953), and invasion of privacy, see Cason v. Baskin, 155 Fla. 198 , 20 So.2d 243, 251 (1944).

2023On appeal, the First District Court applied the impact rule to the plaintiff’s intentional tort claims and, since the plaintiff did not allege that he suffered any physical impact, held that the plaintiff was barred from recovering 8 The Second District Court of Appeal has likewise stated that “The impact doctrine has no application to intentional torts . . . .” Rivers v. Grimsley Oil Co., Inc., 842 So. 2d 975, 976 (Fla. 2d DCA 2003). 9 The Reid opinion does not delineate in detail the specific causes of action asserted by the pro se plaintiff in that case but all of the alleged wrongs discuss

2023On appeal, the First District Court applied the impact rule to the plaintiff’s intentional tort claims and, since the plaintiff did not allege that he suffered any physical impact, held that the plaintiff was barred from recovering 8 The Second District Court of Appeal has likewise stated that “The impact doctrine has no application to intentional torts . . . .” Rivers v. Grimsley Oil Co., Inc., 842 So. 2d 975, 976 (Fla. 2d DCA 2003). 9 The Reid opinion does not delineate in detail the specific causes of action asserted by the pro se plaintiff in that case but all of the alleged wrongs discuss

2023Health Tr., 651 9 So. 2d 673 , 674 (Fla. 1995) (“The ‘impact doctrine’ which evolved from the common law of England, requires that a plaintiff sustain actual physical impact in order to recover for the negligent infliction of emotional distress.” (emphasis added)); Tanner v. Hartog, 696 So. 2d 705, 707 (Fla. 1997) (“Generally stated, the impact rule requires that before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional stress suffered must flow from physical injuries the plaintiff sustained in an impact.” (emphasis added)); Gracey v. Eake

2007Co., 611 So.2d 1294, 1296 (Fla. 4th DCA 1992)); S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 320 (Fla.2005) ("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 the plaintiff sustained in an impact.'") (quoting Humana ); Rowell v. Holt, 850 So.2d 474, 477-78 (Fla.2003) ("The rule requires that `before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow f

2007In Rowell , we determined that an exception to the impact rule was warranted under the facts of that case because the attorney "could doubtlessly foresee" that his actions "would result in significant emotional distress." 850 So.2d at 480 . [10] The Fourth District certified a question in Woodard v. Jupiter Christian School, Inc., 913 So.2d 1188 (Fla. 4th DCA 2005), review granted, 924 So.2d 812 (Fla.2006), concerning the issue of whether the impact rule precludes a claim for negligent infliction of emotional distress arising out of a breach of confidential information provided to a school cha

2007So again, any statements suggesting an alteration to the impact rule would have been dicta. [15] Although the Court in Hagan cited Humana only as requiring "injuries," the actual language from Humana more specifically requires "physical injuries." 652 So.2d at 362 . [16] See Woodard v. Jupiter Christian Sch., Inc., 913 So.2d 1188, 1191-92 (Fla. 4th DCA 2005) (certifying the question of whether the impact rule applies to a clergyman's breach of conditionality), review granted, 924 So.2d 812 (Fla. 2006); Thomas v. OB/GYN Specialists of Palm Beaches, Inc., 889 So.2d 971, 971 (Fla. 4th DCA 2004) (

2007Co., 611 So.2d 1294, 1296 (Fla. 4th DCA 1992)); S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317, 320 (Fla.2005) ("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 the plaintiff sustained in an impact.'") (quoting Humana ); Rowell v. Holt, 850 So.2d 474, 477-78 (Fla.2003) ("The rule requires that `before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow f

2003Co., 611 So.2d 1294, 1296 (Fla. 4th DCA 1992) (describing the impact rule as "preclud[ing] the recovery of damages for negligent infliction of emotional distress unless the emotional distress arises directly from the physical injuries sustained by the plaintiff in the impact").

2007So again, any statements suggesting an alteration to the impact rule would have been dicta. [15] Although the Court in Hagan cited Humana only as requiring "injuries," the actual language from Humana more specifically requires "physical injuries." 652 So.2d at 362 . [16] See Woodard v. Jupiter Christian Sch., Inc., 913 So.2d 1188, 1191-92 (Fla. 4th DCA 2005) (certifying the question of whether the impact rule applies to a clergyman's breach of conditionality), review granted, 924 So.2d 812 (Fla. 2006); Thomas v. OB/GYN Specialists of Palm Beaches, Inc., 889 So.2d 971, 971 (Fla. 4th DCA 2004) (

2006Holt v. Rowell, 798 So.2d 767, 772-73 (Fla. 2d DCA 2001), reversed on other grounds, 850 So.2d 474 (Fla.2003).

2007The impact rule has had a long legal history in this state, beginning with this Court's decision in International Ocean Telegraph Co. v. Saunders, 32 Fla. 434 , 14 So. 148 (1893).

2007See, e.g., Zell v. Meek, 665 So.2d 1048 , 1053 n. 7 (Fla.1995) (noting that in International Ocean Telegraph Co. v. Saunders, 32 Fla. 434 , 14 So. 148 (1893), our earliest case involving negligent infliction of emotional distress, "we required proof of a concomitant physical injury as a safeguard"); R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362, 364 (Fla.1995) (holding that "damages for emotional harm as a result of a misdiagnosis cannot be recovered without a showing of some physical injury," because "intangible, mental injuries are insufficient to meet the physical injury required under t

2007The impact rule was next addressed by this Court in 1954 in our opinion in Crane v. Loftin, 70 So.2d 574 (Fla.1954).

2007Crane v. Loftin, 70 So.2d 574 (Fla.1954) (affirming granting of a motion to dismiss); Gilliam v. Stewart, 291 So.2d 593 (Fla.1974) (affirming a summary judgment); R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla.1995) (setting forth what must be alleged in respect to the impact rule as a rule of law on deciding a motion to dismiss).

2007So again, any statements suggesting an alteration to the impact rule would have been dicta. [15] Although the Court in Hagan cited Humana only as requiring "injuries," the actual language from Humana more specifically requires "physical injuries." 652 So.2d at 362 . [16] See Woodard v. Jupiter Christian Sch., Inc., 913 So.2d 1188, 1191-92 (Fla. 4th DCA 2005) (certifying the question of whether the impact rule applies to a clergyman's breach of conditionality), review granted, 924 So.2d 812 (Fla. 2006); Thomas v. OB/GYN Specialists of Palm Beaches, Inc., 889 So.2d 971, 971 (Fla. 4th DCA 2004) (

2002In affirming the dismissal of the Graceys' action, the district court held that their complaint sounded in negligence and failed to adhere to the "requirement [of the impact rule] that some physical impact to a claimant ... be alleged and demonstrated before the claimant can recover [emotional distress] damages." Id. at 477 .

2006Goodwin v. State, 751 So.2d 537, 545 (Fla.1999) (emphasis in original).

2002In Goodwin , the court explained that in evaluating harmless error the court must be satisfied beyond a reasonable doubt "after evaluation of the impact of the error in light of the overall strength of the case and the defenses asserted, that the verdict could not have been affected by the error." 751 So.2d at 545 (quoting Heuss v. State, 687 So.2d 823, 824 (Fla.1996)).

2001In Doyle v. Pillsbury Co., 476 So.2d 1271 (Fla.1985), for example, this Court observed that the impact rule would not bar a cause of action for damages caused by the ingestion of a contaminated can of peas.

1999However, in the case of contaminated food, he explained the impact requirement is met if a plaintiff ingests the food, citing Doyle v. Pillsbury Company, 476 So.2d 1271 (Fla.1985).

2007Co. v. Burger, 712 So.2d 389, 393 (Fla.1998) ("[T]his Court established the impact rule, which holds that in the absence of a discernible physical injury a person cannot recover compensatory damages for mental distress or psychiatric injury."); see also Tanner v. Hartog, 696 So.2d 705, 707 (Fla.1997) ("[T]he impact rule requires that before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional stress suffered must flow from physical injuries the plaintiff sustained in an impact.") (citing Humana ).

2007See Humana, 652 So.2d at 364 ("[M]ental injuries are insufficient to meet the physical injury required under the impact rule."); see also Welker, 908 So.2d 317, 320 ; Rowell, 850 So.2d at 477-78 ; Burger, 712 So.2d at 393 ; Tanner, 696 So.2d at 707 ; Brown, 468 So.2d at 904 ; Clark, 107 So.2d at 611-12 ; Macurda, 93 So.2d at 861 (all noting the physical injury requirement).

1987Inc. v. Bostic, 423 So.2d 915, 918 (Fla. 3d DCA 1982) (Pearson, Daniel, J., concurring specially), rev. denied, 436 So.2d 97 , 99 (Fla. 1983), we are nonetheless bound by "this state's inexplicable affinity with the impact rule." Rivera, 446 So.2d at 201-02 .

1984If I have not made it sufficiently clear in the past, see Rivera v. Randle Eastern Ambulance Service, Inc., 446 So.2d 200 , 202 n. 1 (Fla.3d DCA 1984), I now join Judge Daniel Pearson in expressly stating that the impact rule should be forever abolished and replaced by some more enlightened rule, see National Car Rental System v. Bostic, 423 So.2d 915 (Fla.3d DCA 1982) (Daniel Pearson, J., concurring specially), review denied mem., 436 So.2d 97 , 99 (Fla. 1983).