A pedestrian comes to an intersection. When the “WALK” sign flashes, the pedestrian starts to cross. However, a driver who was distracted by glancing down at a text message negligently turns directly into the pedestrian’s path.
Fortunately, no impact occurs. The pedestrian walks away with the driver’s license plate number but no physical injuries. But in the days and months that follow, the pedestrian develops extreme stress, anxiety, and flashbacks all due to the near-fatal collision. Can the pedestrian sue the driver in a personal injury claim?
No is the short answer at least in Florida and a handful of other states.
Welcome to Florida’s Impact Rule
As the Florida Bar explains, our state is among the few which still follow the ancient common law Impact Rule. The rule bars a plaintiff in a personal injury lawsuit from recovering any damages for purely emotional injuries if the plaintiff suffers no direct physical impact, or touching.
However, the Impact Rule has one important exception. In some circumstances, you can recover emotional injury damages even when no impact occurs. However, you must suffer some form of physical harm from your emotional trauma in order to qualify for those damages.
For instance, in the above scenario, what would happen if the driver crashed into and killed the pedestrian? The pedestrian’s mother, just a few steps away, may have witnessed the horrific accident or seen her fatally injured daughter just after it happened. In turn, she may have suffered a heart attack or other physical manifestations of her trauma. In this situation, the Impact Rule would not bar the woman’s claim against the driver.
Why Does the Impact Rule Exist in Florida?
We can see most physical injuries. We can also calculate compensation for those injuries by looking at objective evidence such as medical records and hospital bills. But emotional injuries are an entirely different story.
The Impact Rule bars compensation for purely emotional injuries when a plaintiff has suffered no contact. Why? Because it can be too difficult to calculate those damages. After all, how do you determine emotional injuries when no physical injuries have occurred?
Many states have abolished the Impact Rule. Florida sticks with it because of the perceived risk that a damages award in such a case may be an arbitrary number. In fact, in an 1893 decision, the Florida Supreme Court described such damages as being “spiritually intangible.”
With that said, if an impact occurs, a person can recover damages even if the person suffered only emotional harm. All that matters is that the emotional injuries came from an impact.
How Does the Exception to the Impact Rule Work?
In a 1985 decision, the Florida Supreme Court carved out an exception to the Impact Rule. The Court ruled that a person could sue for emotional injuries even if those injuries did not result from a physical impact. The Court would allow a claim for negligent infliction of emotional distress if the plaintiff could show that, due to another’s negligence, the plaintiff:
- Suffered physical harm
- Due to psychological trauma
- Caused by witnessing (hearing, seeing, etc )
- Injury to another person
- With whom the plaintiff had a close personal relationship.
In other words, the plaintiff must suffer some type of physical manifestation of the emotional trauma. And that trauma must result from the experience of observing injury to someone such as child or spouse. According to the Supreme Court, that type of emotional harm is extreme. So, anyone who experiences that type of harm should be able to recover compensation even if it did not directly result from a physical impact.
How Could the Impact Rule Affect Your Personal Injury Lawsuit?
Because of the Impact Rule, your personal injury lawyer must carefully handle your case. The key will be the for the lawyer to conduct a thorough investigation and determine:
- The type of injuries you have suffered physical and/or emotional?
- The cause of those injuries another person’s negligence?
- The extent of those injuries total amount of damages?
If you suffered emotional damages due to a physical impact, then the Impact Rule would not be an issue in your case. However, if no impact occurred, the question would turn to how you suffered your physical injury? Was it the result of emotional trauma you experienced from seeing a loved one injured or killed?
One of the hurdles in a negligent infliction of emotional distress case is establishing the connection between a person’s physical harm and the emotionally traumatic event. For instance, several months after seeing a loved one killed in a car crash, a person may develop an ulcer due to anxiety brought on by the experience. To establish a connection between the ulcer and the accident likely will require the use of one or more experts.
As you may expect, insurance companies frequently fight these claims. They may challenge the connection between the emotional trauma and a person’s physical harm and try to deny or underpay a claim. At Englander Peebles, we meticulously prepare cases. When insurance companies balk at paying claims, we want to be ready to respond with facts and evidence that support our client’s case.
Get Help from an Experienced Fort Lauderdale Personal Injury Lawyer Today
If you have suffered emotional trauma after witnessing the injury of a loved one due to another’s negligence, you should seek help without delay from Englander Peebles. Our personal injury attorneys take pride in being outstanding litigators. We know how to thoroughly prepare cases for settlement negotiations and trials.
At the same time, we focus heavily on providing outstanding client service. We want our clients to know that we are there for them. We carefully handle every aspect of their case so they can focus on their health.
To discuss your case through our offices in Fort Lauderdale, Boca Raton or Miami Gardens, call or reach us online today. Our consultations are always free. We will also charge no costs or fees unless we secure a recovery for you.