Fla. Supreme Court limits ways cases can be barred by 'impact rule.'

Tuesday, November 6, 2007 | 0

By David A. McCranie

In Willis v. Gami Golden Glades, LLC. and Florida Department of Corrections v. Abril, both decided by  4-3 majorities on 10/18/2007, the Florida Supreme Court limited the circumstances under which a plaintiff's recovery for psychological injuries in a personal injury case can be barred by the "impact rule."  Although neither of these decisions is a workers' compensation case, I think they could have an "impact" on an employee's ability to recover from his employer for workplace injuries due to "fright or excitement only" in some cases.
 
So what is the "impact rule?"  It's the court-made rule which says that a personal injury plaintiff may recover against a negligent tortfeasor for psychological injuries only if those injuries are accompanied by some physical "impact." [The impact rule doesn't apply to intentional tort cases like defamation, intentional infliction of emotional distress, breach of fiduciary duty, etc.].  Just how much of an "impact" is required in order to permit the award of damages for mental injuries in these cases?   That's what was at issue in Willis.
 
Mrs. Willis was a guest at a Holiday Inn who, upon her arrival, was directed by security personnel to park her vehicle at a parking lot located across the street because there were no spaces available in the hotel parking lot.  As she exited her vehicle she was accosted in the parking lot by an armed assailant who proceeded to place his gun to her head.  At one point the assailant demanded that she lift her clothing, and as she did, he placed his hands on her, patting down her exposed body.  As a result of this incident, Mrs. Willis came under the care of a psychiatrist and a psychologist for treatment of anxiety, depression, panic attacks, and post traumatic stress disorder.  She later brought suit against the hotel owners and the security company for failure to exercise reasonable care in protecting her from the criminal assault. 
 
The question before the Supreme Court was whether her claim should be barred by the impact rule.  The majority said no because her assailant actually made contact with her by placing the gun to her head and by patting her down in an apparent search for money or other belongings.  Two of the justices (Pariente and Anstead) would have gone further and would have abolished the impact rule altogether.  Three of the justices (Wells, Cantero, and Bell) dissented and would have required some physical injury before allowing claims for mental distress to proceed. (For a good review of the history of the "impact rule" in Florida, read Chief Justice Lewis' concurring opinion).
 
What does this have to do with workers' compensation?  Just this:  Section 440.093(1), Fla. Stat., (added by the legislature in 2003) is actually a codification of the common law "impact rule" for workers' compensation claims.  It says this:
 
(1) A mental or nervous injury due to stress, fright, or excitement only is not an injury by accident arising out of the employment. Nothing in this section shall be construed to allow for the payment of benefits under this chapter for mental or nervous injuries without an accompanying physical injury requiring medical treatment. A physical injury resulting from mental or nervous injuries unaccompanied by physical trauma requiring medical treatment shall not be compensable under this chapter. (Emphasis added).
 
 Actually, the Florida Supreme Court reached the result required by the 2003 statute 15 years ago in City of Holmes Beach v. Grace, 598 So.2d 71 (Fla. 1992).  There, construing the statutory predecessor to §440.093(1), the Court concluded that "a mere touching" cannot suffice as a physical injury sufficient to allow the compensability of psychological injuries under the Florida Workers' Compensation Act.  In so doing, the Court overruled several cases from the First DCA which had said that a "mere touching" was sufficient to allow recovery for psychological injuries under the Act.  For example, see Prahl Brothers, Inc. v. Phillips, 429 So.2d 386 (Fla. 1st DCA 1983)(holding that the claimant's psychological injuries were compensable under the Act where they resulted from the claimant's workplace robbery in which the only physical trauma was the placing of a handgun to the claimant's head and the removal of a ring from her finger).
 
Therefore, the combination of the Supreme Court's Willis decision and §440.093(1) might be this:  if a "mere touching" is insufficient to permit the compensability of mental injuries under the Florida Workers' Compensation Act, but a "mere touching" is sufficient to permit recovery for such injuries in a common law tort claim, in cases where there was a "touching" but no physical injury an employee may have a viable tort claim against his employer (assuming there was some employer negligence).  If the accident is one which is not covered by the Florida Workers' Compensation Act, I think employers would have a hard time claiming that they are immune from such liability under §440.11.

<i>David A. McCranie has been licensed to practice law in the State of Florida since 1982.  He has been a Board Certified Workers' Compensation Lawyer since 1988, and formerly served as a law clerk at Florida's First District Court of Appeal, the appellate court which since 1979 has had statewide jurisdiction over all workers' compensation appeals in Florida. His Florida Workers' Compensation Law Blog can be reached here:</i> www.flworkerscompensationlawyer.com