G4S Secure Solutions USA, Inc. v. Golzar
| Decision Date | 09 November 2016 |
| Docket Number | No. 3D14–2588.,3D14–2588. |
| Citation | 208 So.3d 204 |
| Parties | G4S SECURE SOLUTIONS USA, INC., etc., Appellant, v. Taliya GOLZAR, Appellee. |
| Court | Florida District Court of Appeals |
Hicks, Porter, Ebenfeld & Stein, P.A., and Mark Hicks, Dinah Stein and Shannon Debus–Horn; Kenny Nachwalter, P.A., and Jeffrey T. Foreman and Victoria Wilson, for appellant.
The Ferraro Law Firm, P.A., and David A. Jagolinzer ; O'Quinn Stumphauzer & Sloman, and Jeffrey H. Sloman and Christopher E. Gottfried, for appellee.
Before SHEPHERD, ROTHENBERG and SCALES, JJ.
Appellant, defendant below, G4S Secure Solutions USA, Inc. ("Wackenhut") appeals a final judgment rendered after a jury verdict in favor of Appellee, plaintiff below, Taliya Golzar ("Golzar"). Because Florida's impact rule precludes recovery of damages in tort cases for emotional distress absent any physical injury, we reverse.
Wackenhut is a private security company providing security services throughout the United States, including Miami–Dade County. In November of 2008, Eric Owens ("Owens") submitted an employment application for a position as a security guard with Wackenhut. A Wackenhut human resources manager interviewed Owens, and following the interview, Wackenhut hired Owens as a security officer. Owens successfully passed Wackenhut's training program, drug screening, and medical examination, and received the applicable security guard licenses from the State of Florida. In Owens's employment application he marked the "no" box in response to a question asking whether Owens had any criminal convictions.
Wackenhut, through a subsidiary, also performed a background check on Owens, which revealed that Owens had been convicted in California for a misdemeanor disorderly conduct charge in 2004, but the background check revealed no details about the offense. Wackenhut never asked Owens why he had not disclosed the offense on his employment application, and Wackenhut did not attempt to obtain any of the paperwork from Owens's 2004 California conviction. As it was later revealed, the specific offense for which Owens was convicted under California's disorderly conduct statute was prowling and peeking into an inhabited building.
In June of 2010, Wackenhut assigned Owens to its security account for Old Cutler Bay, a residential community in Miami–Dade County. At around 2:40 a.m. on August 15, 2010, while Owens was on patrol duty in Old Cutler Bay, Owens used his cellular phone to record a video of Golzar, who was about to enter her senior year in high school, in a state of undress. Golzar observed Owens's hand holding up his cellphone pressed on her window and, being quite alarmed at the sight, banged on the window and alerted others in her home of the incident.
After recording the video of Golzar, Owens fled from the Golzar home and drove back to the guardhouse in Old Cutler Bay. Shortly after Owens's return to the guardhouse, one of Golzar's friends drove to the guardhouse and informed Wackenhut officers of the incident. Owens returned to Golzar's home, ostensibly to "investigate" the incident he caused. Owens misrepresented to Golzar's family that Owens had seen a prowler and that he had called the police.
When the police did not arrive at Golzar's home, Golzar's mother phoned the police and learned that, despite Owens's statement to the contrary, the police had not been notified of the incident. Ultimately, the police recovered Owens's phone, which Owens had hidden in a retaining wall near his car. Owens came to the police station and confessed to videotaping Golzar on that night and on two prior occasions. Owens was immediately terminated by Wackenhut and ultimately convicted of two criminal counts of video voyeurism.1
On November 18, 2010, Golzar filed the instant lawsuit against Wackenhut seeking both compensatory and punitive damages. Golzar claimed Wackenhut had negligently hired, retained, and supervised Owens. The basis of Golzar's negligence claims was that Wakenhut should have known Owens had been convicted of peeking and prowling in California in 2004, and thus, Wackenhut was negligent in allowing Owens to work as a security guard in residential areas.
Golzar sought compensatory, non-economic damages for the past and future emotional trauma caused by the incident. At trial, there was no evidence that Golzar had suffered any type of physical injury, and it was undisputed that Owens never touched or had any other physical contact with Golzar. Golzar did claim that, following the incident, she experienced some generalized illnesses and physical problems including weight gain, nightmares, and feelings of anxiety.
After the incident, in her senior year in high school, Golzar ran track, played soccer, and excelled academically. She was accepted at Duke University and awarded a full scholarship. At Duke, she also was involved in a number of extracurricular activities and excelled academically.
After trial, the jury returned a verdict in Golzar's favor finding that Wackenhut had negligently hired, retained, and supervised Owens. The jury awarded Golzar $1,332,588.08 in damages.2
Prior to trial, Wackenhut moved for summary judgment on the ground that Florida's impact rule precluded recovery of the purely non-economic damages for emotional trauma that Golzar had suffered and might suffer in the future. Wackenhut made a similar motion for directed verdict at the conclusion of Golzar's case in chief, and in post-trial motions.3 The trial court denied all of Wackenhut's "impact rule" motions.
Wackenhut timely brings this appeal of the trial court's order denying its Motions to Set Aside the Jury Verdict and Judgment and to Enter Judgment in Accordance with its Motion for Directed Verdict and Amended Motion for New Trial.
When reviewing a pure question of law, such as the trial court's denial of Wackenhut's impact rule motions, our standard of review is de novo. Keck v. Eminisor, 104 So.3d 359, 363 (Fla.2012).
The issue before this Court is whether Florida's impact rule precludes Golzar from recovering against Wackenhut purely non-economic damages for emotional distress for the torts of negligent hiring, negligent retention, and negligent supervision.
Florida's impact rule provides that Fla. Dep't of Corrs. v. Abril, 969 So.2d 201, 206 (Fla.2007) (citations and internal quotation marks omitted). The policy behind Florida's impact rule is that "compensatory damages for emotional distress are ‘spiritually intangible,’ are beyond the limits of judicial action, and should be dealt with through legislative action rather than judicial decisions." R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995).
The Florida Supreme Court has crafted limited exceptions to Florida's impact rule, recognizing that certain torts are necessarily devoid of physical harm and are of such a nature that the only foreseeable damages resulting from those torts are emotional damages that are non-economic in nature.
For example, in Abril, the Court recognized that "... the only reasonable damages arising from a breach of [Florida's HIV confidentiality statute] are emotional distress...." 969 So.2d at 207–08. Similarly, our Supreme Court has noted that Florida's impact rule does not apply to any intentional tort such as defamation, invasion of privacy and intentional infliction of emotional distress. Rowell v. Holt, 850 So.2d 474, 479 (Fla.2003).
Against this backdrop, we analyze the torts of negligent hiring, negligent retention, and negligent supervision,4 i.e., the three causes of action alleged against Wackenhut by Golzar. Specifically, we must determine, as a matter of first impression, whether to include these torts as limited exceptions to Florida's impact rule. At the outset, we note that we have been provided no Florida case in which a court has not applied the impact rule to claims of negligent hiring, negligent retention, and negligent supervision.
In fact, several federal courts have applied Florida's impact rule to preclude a plaintiff's recovery of purely non-economic damages for these torts. See Resley v. Ritz–Carlton Hotel Co., 989 F.Supp. 1442, 1449 (M.D.Fla.1997) (); see also Jenks v. Naples Cmty. Hosp., Inc., 829 F.Supp.2d 1235, 1257–58 (M.D.Fla.2011) (); Weld v. Se. Cos., Inc., 10 F.Supp.2d 1318, 1323 (M.D.Fla.1998) (); Degitz v. S. Mgmt. Servs., Inc., 996 F.Supp. 1451, 1462 (M.D.Fla.1998) ().
Additionally, in addressing whether Florida's impact rule applies to the tort of negligent training, this Court has expressly held that the impact rule...
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