Suing for Negligent Infliction of Emotional Distress in Florida
Paul Brannon | May 17, 2023 | Florida Law
Suing for emotional distress is never easy. In particular, negligent infliction of emotional distress can be a tough claim to prove. In an ordinary personal injury claim, you can seek compensation for emotional distress if (and only if) the defendant’s negligence or other misconduct caused you physical injury. But what do you do if you suffer severe emotional distress but no physical injury?
Well, if the defendant acted intentionally, and if you experienced any form of physical impact (even one that didn’t hurt you), you can file a claim for intentional infliction of emotional distress. If the defendant didn’t intentionally cause your distress, however, you must file a claim for “negligent infliction of emotional distress.” This is a relatively new kind of claim.
The Impact Rule
In Florida, negligent infliction of emotional distress is subject to the “impact rule.” If you file a claim for negligent infliction of emotional distress, the general expectation is that the defendant must have acted negligently, and this negligence must have physically impacted you. There are exceptions, however (see below).
The classic example involves the explosion of a building (presumably caused by the defendant’s negligence). Even being hit by a pebble constitutes a physical impact. Another form of impact is a physical symptom caused by your resulting emotional distress, such as diagnosed clinical depression. Simply claiming that you feel depressed, on the other hand, is insufficient.
Exceptions to the Impact Rule
Florida’s impact rule is unique, and it has drawn significant criticism within legal circles in the state because people consider it an arbitrary and harsh standard that leads to unfair results. In mitigation, Florida courts have carved out several exceptions:
- The defendant’s negligence caused you to have to witness the violent death or serious injury of one of your family members (see Champion v. Gray and Zell v. Meek for precedents).
- Your psychotherapist breached their doctor/patient confidentiality obligations by negligently revealing private information about your condition or treatment.
- A medical professional negligently caused your child to be born dead or suffer birth injuries.
- You learn that you have consumed food that someone negligently contaminated (even if you never get sick).
- You are HIV positive, and this status is negligently disclosed in violation of Florida law.
Don’t give up on your claim just because it doesn’t fall within one of the foregoing exceptions. Florida courts might carve out a sixth exception for you if the facts of your case warrant it.
Settlement vs. Litigation
Most people, whether they play the role of victim or defendant, prefer to avoid trial if possible. Trial is time-consuming, expensive, and easily avoidable if the parties are in any mood to settle outside of court. This is usually what happens.
However, getting to ‘yes’ in settlement negotiations is not always easy, especially if you insist on a fair settlement. Your best bet is usually to let your lawyer negotiate for you. The parties will settle for some amount in the ballpark of whatever amount they believe a trial court would award.
If your claim for emotional distress is not clear-cut (and often such claims are not), you can expect the other side to discount its settlement offer.
Contact a Fort Walton Beach Personal Injury Lawyer To Sort It All Out for You
Florida law on negligent infliction of emotional distress is confusing and rapidly evolving. If you have a significant claim, or if you think you might have a significant claim, contact a Fort Walton Beach personal injury lawyer to schedule a free initial consultation.
You are under no obligation to hire the lawyer just because you scheduled a consultation. If the lawyer offers to represent you, however, you can be fairly confident that they believe they can win your case. After all, under the contingency fee system, personal injury lawyers aren’t paid unless they secure compensation for you.
We have two convenient locations in Northwest Florida:
Brannon & Brannon Personal Injury Attorneys – Destin Office
4507 Furling Ln Suite 214
Destin, FL 32541
Brannon & Brannon Personal Injury Attorneys – Fort Walton Beach Office
975 Mar Walt Dr
Fort Walton Beach, FL 32547