Champion v. Gray, 81-1309

• Decision Date: 06 October 1982
• Docket Number: No. 81-1309,81-1309
• Citation: 420 So.2d 348
• Parties: 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.
• Court: Florida District Court of Appeals

Page 348

420 So.2d 348

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.

District Court of Appeal of Florida Fifth District.

Oct. 6, 1982.

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

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 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 persons, who do not sustain any physical impact in the accident or fear for their own safety." Tobin v. Grossman, 24 N.Y.2d 609, 613, 301 N.Y.S.2d 554, 556, 249 N.E.2d 419, 421 (1969). In other words, "the mental disturbance and its consequences are not caused by any fear for the plaintiff's own safety, but by distress at some peril or harm to another person--as in the case of a mother witnessing the death of her child." W. Prosser, The Law of Torts 333, (4th ed. 1980). Of course, those jurisdictions which still follow the impact rule deny recovery in this situation. Id. Many courts which no longer require impact would also deny recovery because the mother (or other close relative) was not in the "zone of danger" and "the defendant could not reasonably anticipate any harm to the plaintiff, and therefore owes her no duty of care." Id. However, an increasing number of those courts which allow recovery absent impact have examined the policy factors involved and also allow a claim for relief where a parent or close relative has sustained substantial physical harm as a result of severe emotional distress over some peril or harm to another (usually a minor child), caused by the defendant's negligence, and the parent or close relative either witnessed the accident or soon came to the scene of the accident while the initial victim was still there. ²

Until recently, the typical case in other jurisdictions allowing recovery for injuries arising from concern over harm to another involved a person (usually the parent) who was also put in fear for his own safety as a result of the defendant's negligence. In other words, recovery was allowed because the parent was in the "zone of danger." As stated by the Massachusetts Supreme Court in Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295, 1300 (1978):

It is arguably reasonable to impose liability for the physical consequences of emotional distress where the defendant's negligent conduct might have caused physical injury by direct impact but did not. The problem with the zone of danger rule, however, is that it is an inadequate measure of the reasonable foreseeability of the possibility of physical injury resulting from a parent's anxiety arising from harm to his child. The reasonable foreseeability of such a physical injury to a parent does not turn on whether that parent was or was not a reasonable prospect for a contemporaneous injury because of the defendant's negligent conduct.

In 1968, the California Supreme Court broke the pattern of denying recovery merely because the parent was not threatened with contemporaneous injury or was not in the zone of danger. The court held that a cause of action was maintainable on behalf of a mother, in no danger herself, who witnessed her minor daughter's death in a car accident allegedly caused by the defendant's negligence, and who suffered emotional disturbance and shock to her nervous system which caused her physical and mental pain and suffering. Dillon v. Legg, 68 Cal.2d, 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968). One year later, recovery by a mother who did not witness the accident but arrived at the scene shortly thereafter was allowed by a California appellate court in Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1969). The court stated: "Manifestly, the shock of seeing a child severely...