Hagan v. Coca-Cola Bottling Co., SC00-287.

• Citation: 804 So.2d 1234
• Decision Date: 13 December 2001
• Docket Number: No. SC00-287.,SC00-287.
• Parties: Linda HAGAN, et al., Petitioners, v. COCA-COLA BOTTLING CO., et al., Respondents.
• Court: United States State Supreme Court of Florida

804 So.2d 1234

Linda HAGAN, et al., Petitioners, v. COCA-COLA BOTTLING CO., et al., Respondents.

No. SC00-287.

Supreme Court of Florida.

December 13, 2001.

Donald N. Watson and Linda L. Weiksnar of Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, P.A., Stuart, FL; and Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, FL, for Petitioners.

Raoul G. Cantero, III and Gregory A. Victor of Adorno & Zeder, P.A., Miami, FL, for Respondents. John G. Crabtree, Key Biscayne, FL, for The Academy of Florida Trial Lawyers, Amicus Curiae.

Tracy Raffles Gunn of Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Tampa, FL, for Florida Defense Lawyers' Association, Amicus Curiae.

ANSTEAD, J.

We have for review a decision from the Fifth District Court of Appeal in which the court certified a question to be of great public importance:

SHOULD THE IMPACT RULE BE ABOLISHED OR AMENDED IN FLORIDA?

Coca-Cola Bottling Co. v. Hagan, 750 So.2d 83 (Fla. 5th DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Because we conclude that there was an impact here and the impact rule does not bar the claim, we rephrase the certified question:

DOES THE IMPACT RULE PRECLUDE A CLAIM FOR DAMAGES FOR EMOTIONAL DISTRESS CAUSED BY THE CONSUMPTION OF A FOREIGN SUBSTANCE IN A BEVERAGE PRODUCT WHERE THE PLAINTIFF SUFFERS NO ACCOMPANYING PHYSICAL INJURIES?

For reasons expressed below, we answer the certified question as rephrased in the negative and quash in part the decision below.

MATERIAL FACTS

The facts in this case are set out in the district court's opinion. See Coca-Cola Bottling Co. v. Hagan, 750 So.2d 83 (Fla. 5th DCA 1999)

. Those facts reflect that in September 1992, Linda Hagan and her sister Barbara Parker drank from a bottle of Coke which they both agreed tasted flat. Hagan then held the bottle up to a light and observed what appeared to her and Parker to be a used condom. Both women testified at trial that the condom they saw in the Coke had "oozy stringy stuff coming out of the top." Both women were distressed that they had consumed some foreign material and Hagan immediately became nauseated. Because of their concerns as to what they had consumed, the women went to a health care facility the next day and were given shots. The medical personnel at the facility told them they should be tested for HIV—AIDS. They were then tested and informed that the results were negative. Both women were tested for HIV again six months later and the results were again negative.

The bottle was later delivered to Coca-Cola for testing. Coca-Cola's beverage analyst, Dr. Forrest Bayer, testified at trial that he, too, initially thought the object in the bottle was a condom. However, upon closer examination, he concluded that the object was a mold. See id. According to the court below:

At trial, Dr. Bayer produced a petre dish which he testified, contained remnants of the mold, although there was no identifying mark on the dish. He explained that over time this kind of mold dries up and shrinks in size because of its large water content. He also explained that this kind of mold can grow in beverages which have lost their carbonation. He said that given the date this particular Coke was bottled, the heat in Florida, and other conditions which may have occurred prior to its purchase by Hagan, it was possible for the mold to grow in the bottle to its size and shape when discovered by Parker and Hagan.

He concluded that, to a "scientific certainty," the item floating in the Coke bottle was not a condom. He admitted on cross-examination, however, that he did not see the lab technician pour the Coke and item into the beaker. Parker, Hagan, and Willie Parker all testified they were certain they had seen a used condom floating in the Coke bottle. In addition, enlarged photographs of the Coke bottle with something floating in its contents, apparently taken by plaintiffs' attorney were admitted into evidence.

Id. at 85 (footnote omitted). At the conclusion of the trial, the jury returned a verdict in favor of the plaintiffs, awarding $75,000 each to Hagan and Parker. The jury also awarded $20,000 to Willie Parker, Barbara Parker's husband, on his consortium claim. The trial court reduced the jury award to $25,000 each to Hagan and Parker and reduced Willie Parker's award to $8,000. Both sides appealed to the Fifth District Court of Appeal.

The district court concluded that the conflicting evidence presented at trial was sufficient to create a jury issue as to whether the foreign matter in the Coke bottle was, in fact, a condom: "Although we have serious doubts that the plaintiff established that the object in the Coke was a used condom, for purposes of this appeal, we will assume the jury could have made that finding." Id. at 86. However, the district court reversed the jury awards and concluded that under the case law concerning the "impact rule," Hagan and Parker had not established a claim because neither woman had suffered a physical injury.

Judge Dauksch concurred in the majority opinion because he felt duty-bound to adhere to the "impact rule." However, he expressed the view that the "impact rule" should be amended or abolished and further stated that absent the rule he would have affirmed the judgment below. Accordingly, he, with Judge Sharp concurring, certified the above question to this Court. See id. at 91-92 (Dauksch, J., specially concurring).

ANALYSIS

Hagan and Parker (hereinafter "appellants") assert that a person should not be barred from recovering damages for emotional distress caused by the consumption of a beverage containing a foreign substance simply because she suffered distress but did not suffer any additional physical injury at the time of consumption. Therefore, appellants contend that the "impact rule" should not operate to preclude relief under the circumstances of this case. We agree with appellants and hold that the impact rule does not apply to cases where a plaintiff suffers emotional distress as a direct result of the consumption of a contaminated beverage.

Impact Rule in Florida

We begin by acknowledging that although many states have abolished the "impact rule," several states, including Florida, still adhere to the rule.¹ This Court, while acknowledging exceptions, has accepted the impact rule as a limitation on certain claims as a means for "assuring the validity of claims for emotional or psychic damages." R.J. v. Humana of Florida, Inc., 652 So.2d 360, 363 (Fla. 1995); accord Tanner v. Hartog, 696 So.2d 705 (Fla.1997)

; Zell v. Meek, 665 So.2d

1048 (Fla.1995); Gonzalez v. Metropolitan Dade County Public Health Trust, 651 So.2d 673, 674 (Fla.1995); Gilliam v. Stewart, 291 So.2d 593 (Fla.1974). Generally stated, the impact rule requires that before a plaintiff may recover damages for emotional distress, she must demonstrate that the emotional stress suffered flowed from injuries sustained in an impact. See R.J., 652 So.2d at 362. Notwithstanding our adherence to the rule, this Court has noted several instances where the impact rule should not preclude an otherwise viable claim.

For example, this Court modified the impact rule in bystander cases by excusing the lack of a physical impact. In such cases, recovery for emotional distress would be permitted where one person suffers "death or significant discernible physical injury when caused by psychological trauma resulting from a negligent injury imposed on a close family member within the sensory perception of the physically injured person." Champion v. Gray, 478 So.2d 17, 18 (Fla.1985); see also Zell v. Meek, 665 So.2d 1048 (Fla.1995)

(reaffirming rule in bystander cases but rejecting temporal proximity requirement). We also have held that the impact rule does not apply to claims for intentional infliction of emotional distress, see Eastern Airlines, Inc. v. King, 557 So.2d 574 (Fla.1990), wrongful birth, see Kush v. Lloyd, 616 So.2d 415 (Fla.1992), negligence claims involving stillbirth, see Tanner v. Hartog, 696 So.2d 705 (Fla.1997), and bad faith claims against an insurance carrier, see Time Ins. Co. v. Burger, 712 So.2d 389 (Fla.1998).

In Tanner, the plaintiffs filed suit against their doctors and hospital for negligence in causing the stillbirth of their child. One of the claims sought damages for mental pain and anguish unaccompanied by any impact or physical injury resulting from the negligence which caused the stillbirth. 696 So.2d at 706. The trial court denied the claim for emotional damages and the district court affirmed.

On review, this Court recognized that "the primary obstacle in Florida to a cause of action for `negligent stillbirth' is the application of the impact rule." Id. at 707. In our analysis, however, we compared the case to a case involving wrongful birth wherein we had held that the impact rule does not apply. See id. at 708 (citing Kush v. Lloyd, 616 So.2d 415 (Fla.1992)). In Kush v. Lloyd, we explained:

However, we are not certain that the impact doctrine ever was intended to be applied to a tort such as wrongful birth. Prosser and Keeton state that the impact doctrine should not be applied where emotional damages are an additional "parasitic" consequence of conduct that itself is a freestanding tort apart from any emotional injury. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 361-65 (5th ed.1984). The American Law Institute is in general accord. Restatement (Second) of Torts § 47 & § 47 cmt. b (1965). Obviously, the Lloyds have a claim for wrongful birth even if no emotional injuries had been alleged.

Similarly, the impact doctrine also generally is inapplicable to recognized torts in which damages often are predominately emotional, such as defamation or invasion of privacy. Restatement (Second) of Torts §§ 569, 570, 652H cmt. b (1977). This conclusion is entirely consistent with existing Florida law. For example, it is well settled

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