420 So.2d 348 (Fla.App. 5 Dist. 1982), 81-1309, Champion v. Gray

Docket Nº81-1309.
Citation420 So.2d 348
Party NameWalton D. CHAMPION, as Personal Representative of the Estate of Joyce Caroline Champion, deceased, Appellant, v. Roy Lee GRAY, Jr.; Roy L. Gray; Gladys Gray; Dixie Insurance Co., etc.; and Florida Farm Bureau Casualty Insurance Company, etc., Appellees.
Case DateOctober 06, 1982
CourtFlorida Court of Appeals, Fifth District

Page 348

420 So.2d 348 (Fla.App. 5 Dist. 1982)

Walton D. CHAMPION, as Personal Representative of the Estate of Joyce Caroline Champion, deceased, Appellant,

v.

Roy Lee GRAY, Jr.; Roy L. Gray; Gladys Gray; Dixie Insurance Co., etc.; and Florida Farm Bureau Casualty Insurance Company, etc., Appellees.

No. 81-1309.

Florida Court of Appeals, Fifth District.

October 6, 1982

Page 349

Ann G. Paschall, of McClung & Paschall, Brooksville, for appellant.

Chris W. Altenbernd, of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa, for appellee Florida Farm Bureau Cas. Ins. Co.

Gary M. Witters, of Allen, Dell, Frank & Trinkle, Tampa, for appellees, Gray, Jr., Gray and Dixie Ins. Co.

DAUKSCH, Judge.

At issue in this appeal is the complex question of whether a plaintiff should be allowed to recover for the physical consequences of a mental or an emotional disturbance caused by a negligent act in the absence of physical impact upon the plaintiff. The rule in Florida is that absent physical impact upon the plaintiff, damages may not be recovered for mental anguish or physical injury resulting from emotional stress caused by the negligence of another. Gilliam v. Stewart, 291 So.2d 593 (Fla.1974); Claycomb v. Eichles, 399 So.2d 1050 (Fla. 2d DCA 1981). Only the Florida Supreme Court can overrule the "impact rule" and we shall respect the rule until our supreme court sees fit to change it. Gilliam v. Stewart, 291 So.2d 593 (Fla.1974); Hoffman v. Jones, 280 So.2d 431 (Fla.1973). However, we suggest that the rule should at least be revisited and at best be changed.

This case is before us from an order dismissing a complaint with prejudice. The complaint alleged that Karen Champion, the child of Joyce and Walton Champion, was walking near a roadway when a car driven by a drunk driver left the road, struck the child and killed her. Immediately after the accident, Karen's mother, Joyce, came to the scene and discovered the body of her child. Overcome with shock and grief at the sight of and death of her daughter, Joyce collapsed and died.

Mr. Champion alleged that he lost his daughter, then his wife, as a direct and proximate result of the actions of the driver. The lawsuit against the defendants for the death of the daughter continued. The lawsuit against the driver for the death of the mother was dismissed because there was no actual physical contact upon the plaintiff (here plaintiff's decedent, the child's mother), and therefore no legal nexus between the actions of the driver and the death of the mother.

Because Florida still adheres to the impact rule, the trial court properly dismissed the complaint with prejudice. However, it has been held in other states that no physical contact is necessary and the impact rule has been discarded. The majority of jurisdictions now allow recovery, absent impact, for the negligent infliction of emotional stress, particularly where physical injury is produced as a result of such stress. 1 /p> Page 350

Our view is that Florida should now align itself with the overwhelming majority of jurisdictions which have abandoned the rule and condemn it as unjust and illogical. The rationale for the rule has certainly been seriously undermined in recent years. Rickey v. Chicago Transit Authority, 101 Ill.App.3d 439, 57 Ill.Dec. 46, 48, 428 N.E.2d 596, 598 (1981). Techniques for diagnosing the causal connection between emotional states and physical injuries have been significantly refined since the impact rule was first announced. Stewart v. Gilliam, 271 So.2d 466 (Fla. 4th DCA 1973), quashed, 291 So.2d 593 (Fla.1974). Due to the advances of medical science in the field of psychic injuries, it is foreseeable to the defendant that his negligence may cause another to suffer emotional distress, and mere difficulty of proof or the possibility of fraud should not preclude the plaintiff from the opportunity to prove his injury. We agree with the rationale of Judge Mager in Stewart v. Gilliam, where he said:

The question is not really one of "impact" but rather the causal connection between the negligent act and the ultimate injury--a circumstance which in the last analysis does not seem to pose problems any more difficult to solve in a non-impact case than in an impact case. Causation is not peculiar to cases without impact; it is an ingredient in all types of personal injury litigation. The fact that there may be difficulty in proving or disproving a claim should not prevent a plaintiff from being given the opportunity of trying to convince the trier of fact of the truth of the claim. The question is one that falls within the province of a jury in light of the circumstances in the particular case.

271 So.2d at 473.

Additionally, if recovery in negligence for physical injuries resulting from emotional disturbance absent impact is allowed in Florida, the risk of fraudulent claims should be no greater than it currently is in this state for recovery which is available for the intentional infliction of emotional distress without contemporaneous physical injury. Furthermore, in those jurisdictions which allow recovery in negligence for emotional injuries without physical impact "the feared flood tide of litigation has simply not appeared." Niederman v. Brodsky, 436 Pa. 401, 411, 261 A.2d 84, 89 (1970). However, "[m]ore significant than what may have been the experience in other states is the basic principle that a fear of expansive litigation should not deter courts from granting relief in meritorious cases." Stewart v. Gilliam, 271 So.2d at 475.

The basic purpose of our court system is to provide a remedy to those who are injured by the fault of others. Article I, Section 21 of the Florida Constitution states: "The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay." Whether Walton Champion's wife died as a result of the defendant's negligence should be determined in court, and if it is proved that the allegations are true then he should recover what relief is available. To deny him relief for the shallow,

Page 351

out-dated, unrealistic reasons underlying the impact rule does not comport with the justice required by our constitution.

There are two aspects to the problem presented in this case. The first aspect involves recoverability by a plaintiff for physical injuries due to mental trauma, negligently caused, absent impact. This aspect has already been discussed and we have expressed our view that an action for recovery should be maintainable. The second aspect is more difficult. The question becomes "whether the concept of duty in tort should be extended to third...

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  • 572 F.Supp. 1201 (D.S.D. 1983), Civ. 81-3067, Gnirk v. Ford Motor Co.
    • United States
    • Federal Cases United States District Courts 8th Circuit District of South Dakota
    • October 14, 1983
    ...physical injury or impact from the tortious acts of defendant committed against a third party. See, e.g., Champion v. Gray, 420 So.2d 348 (Fla.Dist.Ct.App.1982); Little v. Williamson, 441 N.E.2d 974 (Ind.Ct.App.1982). A second level of courts, following the lead of New York's highest court ......
  • 61 N.Y.2d 219, Bovsun v. Sanperi
    • United States
    • New York New York Court of Appeals
    • February 23, 1984
    ...[Fla.], app pending; National Car Rental System v. Bostic, 423 So.2d 915 [Fla.], pet. for rev. den. 436 So.2d 97, 99; Champion v. Gray, 420 So.2d 348 [Fla.], app pending; Howard v. Bloodworth, 137 Ga.App. 478, 224 S.E.2d 122; Strickland v. Hodges, 134 Ga.App. 909, 216 S.E.2d 706; Preece v. ......
  • 449 So.2d 359 (Fla.App. 5 Dist. 1984), 83-291, Rosen By and Through Rosen v. Zorzos
    • United States
    • Florida Florida Court of Appeals Fifth District
    • April 12, 1984
    ...for redress of any injury, and justice shall be administered without sale, denial or delay." As this court said in Champion v. Gray, 420 So.2d 348 (Fla. 5th DCA 1982) "[t]he basic purpose of our court system is to provide a remedy to those who are injured by the fault of others.&q......
  • 750 So.2d 83 (Fla.App. 5 Dist. 1999), 98-1463, Coca-Cola Bottling Co. v. Hagan
    • United States
    • Florida Florida Court of Appeals Fifth District
    • December 3, 1999
    ...Having achieved my judicial maturity, from my point of view anyway, I can more definitely say how right we were then in Champion v. Gray, 420 So.2d 348 (Fla. 5th DCA 1982). If someone is injured emotionally then the person who causes the injury should answer for the tortious conduct and inj......
  • Request a trial to view additional results
14 cases
  • 572 F.Supp. 1201 (D.S.D. 1983), Civ. 81-3067, Gnirk v. Ford Motor Co.
    • United States
    • Federal Cases United States District Courts 8th Circuit District of South Dakota
    • October 14, 1983
    ...physical injury or impact from the tortious acts of defendant committed against a third party. See, e.g., Champion v. Gray, 420 So.2d 348 (Fla.Dist.Ct.App.1982); Little v. Williamson, 441 N.E.2d 974 (Ind.Ct.App.1982). A second level of courts, following the lead of New York's highest court ......
  • 61 N.Y.2d 219, Bovsun v. Sanperi
    • United States
    • New York New York Court of Appeals
    • February 23, 1984
    ...[Fla.], app pending; National Car Rental System v. Bostic, 423 So.2d 915 [Fla.], pet. for rev. den. 436 So.2d 97, 99; Champion v. Gray, 420 So.2d 348 [Fla.], app pending; Howard v. Bloodworth, 137 Ga.App. 478, 224 S.E.2d 122; Strickland v. Hodges, 134 Ga.App. 909, 216 S.E.2d 706; Preece v. ......
  • 449 So.2d 359 (Fla.App. 5 Dist. 1984), 83-291, Rosen By and Through Rosen v. Zorzos
    • United States
    • Florida Florida Court of Appeals Fifth District
    • April 12, 1984
    ...for redress of any injury, and justice shall be administered without sale, denial or delay." As this court said in Champion v. Gray, 420 So.2d 348 (Fla. 5th DCA 1982) "[t]he basic purpose of our court system is to provide a remedy to those who are injured by the fault of others.&q......
  • 750 So.2d 83 (Fla.App. 5 Dist. 1999), 98-1463, Coca-Cola Bottling Co. v. Hagan
    • United States
    • Florida Florida Court of Appeals Fifth District
    • December 3, 1999
    ...Having achieved my judicial maturity, from my point of view anyway, I can more definitely say how right we were then in Champion v. Gray, 420 So.2d 348 (Fla. 5th DCA 1982). If someone is injured emotionally then the person who causes the injury should answer for the tortious conduct and inj......
  • Request a trial to view additional results