665 So.2d 1048 (Fla. 1995), 83806, Zell v. Meek

Docket Nº:83806.
Citation:665 So.2d 1048, 20 Fla. L. Weekly S 515
Opinion Judge:Author: Anstead
Party Name:Samuel ZELL, etc., et al., Petitioners, v. Gaylynn Sue MEEK and Barry M. Meek, Respondents.
Attorney:Jack W. Shaw, Jr. and Michael J. Obringer of Osborne, McNatt, Shaw, O'Hara, Brown & Obringer, Jacksonville, Florida, for Petitioners.
Case Date:October 05, 1995
Court:Supreme Court of Florida
 
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Page 1048

665 So.2d 1048 (Fla. 1995)

20 Fla. L. Weekly S 515

Samuel ZELL, etc., et al., Petitioners,

v.

Gaylynn Sue MEEK and Barry M. Meek, Respondents.

No. 83806.

Supreme Court of Florida.

October 5, 1995

Rehearing Denied Jan. 3, 1996.

Jack W. Shaw, Jr. and Michael J. Obringer of Osborne, McNatt, Shaw, O'Hara, Brown & Obringer, Jacksonville, for petitioners.

Christopher C. Hazelip and Clinton A. Wright, III of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for respondents.

Sharon Lee Stedman of Sharon Lee Stedman, P.A., Orlando, Amicus Curiae for Florida Defense Lawyers Association.

Arnold R. Ginsberg of Perse, P.A. & Ginsberg, P.A., Miami, Amicus Curiae for Academy of Florida Trial Lawyers.

ANSTEAD, Justice.

Gaylynn Sue Meek (Meek) and her husband Barry M. Meek sought review in the district court of a summary final judgment entered against them on their claim for negligent infliction of emotional distress. The district court reversed and certified the following

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question as one of great public importance:

IS THE INTERVAL OF TIME BETWEEN A PSYCHIC TRAUMA AND THE MANIFESTATION OF PHYSICAL TRAUMA MERELY ONE ISSUE FOR THE TRIER OF FACT'S CONSIDERATION IN DECIDING WHETHER THE CAUSE OF ACTION RECOGNIZED IN CHAMPION V. GRAY [478 So.2d 17 (Fla.1985) ] HAS BEEN ESTABLISHED [part I]; OR IS THERE SOME ARBITRARY PERIOD AFTER WHICH THE MANIFESTATION OF PHYSICAL IMPAIRMENT WILL BE CONCLUSIVELY PRESUMED NOT TO HAVE BEEN CAUSED BY THE PSYCHIC TRAUMA [part II]?

Meek v. Zell, 636 So.2d 105, 108 (Fla. 1st DCA 1994). We have jurisdiction. Art. V, Sec. 3(b)(4), Fla. Const. We approve the decision of the district court and answer part I of the certified question in the affirmative, but qualify our answer by holding that the interval of time between the psychic trauma and the physical manifestation is one factor in proving causation. We answer part II of the certified question in the negative and hold that the factual question of causation is to be decided on a case-by-case basis.

FACTS

The facts underlying the Meeks' claim are set out in the district court opinion. Their claim is based on injuries allegedly sustained by Gaylynn Meek after she witnessed her father's death at the hands of an anonymous bomber at the father's apartment. The Meeks sued Samuel Zell (owner of the apartment complex) and First Property (apartment management company) alleging that they were negligent in failing to take reasonable steps to protect their tenants and invitees, including Meek's father, from foreseeable criminal conduct. The Meeks' complaint alleged a cause of action for negligent infliction of emotional distress.

It is undisputed that Zell and First Property received bomb threats prior to the bombing but did not warn their tenants or invitees, or otherwise take any reasonable steps to provide for their safety and security against the threats. Following an overnight boating trip, Meek and her parents returned to the latter's apartment home. Upon entering, they noticed a small box on their doorstep. Meek and her mother stepped over the box and into the kitchen, leaving Meek's father behind. Immediately thereafter, a tremendous explosion rocked the entire apartment. The force of the explosion shattered windows and light fixtures and blew a smoke detector and thermostat from the wall. A glass light fixture suspended from the kitchen ceiling shattered and the debris fell on Meek and her mother. Meek screamed and then made her way through the smoke to the front door where she saw her father, who lay scorched, mutilated, and dying.

Meek did not suffer any significant physical injuries as a direct result of the smoke or shattered pieces of glass that fell on her. However, immediately after witnessing her father's death, Meek began having insomnia (for which she took prescribed medication), coupled with depression (for which she continues to take prescribed medication), short-term memory losses, an extreme fear of loud noises, bad dreams, and an inability to stop reliving the event. Within three weeks of the bombing, she began psychological treatment which continued intermittently for a period of two years with three different psychologists. Meek's sexual relationship with her husband also suffered during this time.

Approximately nine months after the bombing, Meek began experiencing physical impairment in the upper area of her stomach. Thereafter, the pain below her rib cage became worse and she became very ill, with pain spreading into her chest area. This pain was eased somewhat with prescription ulcer medication. Eventually, Meek experienced a blockage in her esophagus, was unable to swallow, and had difficulty in breathing. Meek also developed joint pain in her hips and elbows, which she treats with Ibuprofen. Meek's treating physician expressed the following opinion regarding her condition:

I have treated [Meek] for anxiety with depressed mood, orodental dysphagia [esophageal contractions], fibromyalgia [pain in

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hip and elbow joints], dyspepsia [stomach pains] and irritable bowel symptoms. In my medical opinion, within a reasonable degree of probability, the psychological trauma she suffered as a result of her father's death has contributed to her physical symptoms and increased [her] need for medical care. Additionally, in my medical opinion, within a reasonable degree of probability, she has suffered from insomnia and anxiety with depressed mood, with situational depression secondary to her father's death.

On this record, the district court held that under Champion v. Gray, 478 So.2d 17 (Fla.1985), the Meeks had produced sufficient evidence to entitle them to a trial on their claim for negligent infliction of emotional distress.

LAW AND ANALYSIS

In Champion v. Gray, 478 So.2d 17 (Fla.1985), we held that persons who suffer a physical injury as a result of emotional distress arising from their witnessing the death or injury of a loved one may maintain a cause of action for negligent infliction of emotional distress. Prior to Champion, Florida adhered strictly to a requirement that some physical impact to a claimant must be alleged and demonstrated before the claimant could recover damages for personal injury. This rule is referred to as "the impact rule." Gilliam v. Stewart, 291 So.2d 593, 595 (Fla.1974); Crane v. Loftin, 70 So.2d 574, 575 (Fla.1954). 1

GILLIAM v. STEWART

The impact rule has not been without its critics and has been abolished in most jurisdictions. 2 In 1972, the Fourth District, believing that the impact rule was "at variance with modern-day needs and with concepts of justice and fair dealing," held that a plaintiff may recover for the demonstrable physical consequences of a mental or emotional disturbance caused by the negligent act of another, even in the absence of an actual physical impact to the...

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