Gracey v. Eaker, SC00-153.

CourtUnited States State Supreme Court of Florida
Citation837 So.2d 348
Docket NumberNo. SC00-153.,SC00-153.
PartiesDonna GRACEY and Joseph Gracey, Petitioners, v. Donald W. EAKER, Respondent.
Decision Date19 December 2002

837 So.2d 348

Donna GRACEY and Joseph Gracey, Petitioners,
Donald W. EAKER, Respondent

No. SC00-153.

Supreme Court of Florida.

December 19, 2002.

837 So.2d 350
Nolan Carter and Karen R. Wasson, Orlando, FL, for Petitioners

James B. Thompson of Thompson, Goodis, Thompson, Groseclose & Richardson, P.A., St. Petersburg, FL, for Respondent.


We have for review Gracey v. Eaker, 747 So.2d 475 (Fla. 5th DCA 1999), in which the district court affirmed the dismissal of an action initiated by the petitioners, Donna and Joseph Gracey ("Graceys"), a couple allegedly injured by the counseling activities of a psychotherapist, against Dr. Donald W. Eaker ("Eaker"). The Graceys sought the recovery of emotional distress damages that were allegedly inflicted by Eaker's actions in revealing the most confidential of information disclosed to him by each individual during and only as part of a confidential and fiduciary relationship. In affirming the dismissal of the Graceys' action, the district court held that their complaint sounded in negligence and failed to adhere to the "requirement [of the impact rule] that some physical impact to a claimant ... be alleged and demonstrated before the claimant can recover [emotional distress] damages." Id. at 477.

In addition to affirming the dismissal of the petitioners' action, the district court certified a question of great public importance:


Id. at 478. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We are concerned that the certified question as phrased by the district court may be more expansive than necessary to resolve this case under the facts before us. Therefore, we rephrase the certified question limited to the facts involved here as follows:1

837 So.2d 351

For the reasons stated below, we answer the rephrased certified question in the negative and hold that the impact rule is inapplicable to the facts of the case before us.


In a fourth amended complaint, the Graceys averred that Eaker is a licensed psychotherapist who, for profit, provided treatment to them in individual counseling sessions, ostensibly seeking to intervene in the most personal of matters directed to marital difficulties. They also alleged that Eaker, during individual therapy sessions,

would inquire about, and each of the [petitioners] would disclose to him, very sensitive and personal information that neither had disclosed to the other spouse at any time during their relationship. [Petitioners] would disclose this information because they were led to believe, by [Eaker], that such information was necessary for treatment purposes.

The petitioners further alleged that a direct violation of Florida law occurred in that despite being under a statutorily imposed duty to keep the disclosed information confidential,2 Eaker nevertheless unlawfully divulged to each of the petitioners "individual, confidential information which the other spouse had told him in their private sessions." Subsequent to these disclosures, the Graceys set forth that they realized that Eaker had devised "a plan of action ... designed to get [them] to divorce each other." The Graceys claimed that such actions by Eaker constituted "breaches ... of his fiduciary duty of confidentiality [that was] owed [individually] to [them]."

With regard to the damages resulting from Eaker's actions, the Graceys alleged that

they have sustained severe mental anguish upon learning of [the] actions of the other spouse, of which they individually were not aware, and that [Eaker's] disclosure [of these actions] has caused irreparable damage to any trust that they would have had for each other.... [Moreover, they alleged that Eaker's] actions have caused great mental anguish for the[m] individually in their personal relationships with others due to their inability to trust the others in those personal relationships.

Additionally, the Graceys asserted that they have incurred substantial costs and expenses in undergoing further treatment in an attempt to correct the mental damage inflicted upon them by Eaker's actions.

In upholding the trial court's dismissal of the petitioners' action, the district court expressed that it was "constrained to agree" with Eaker's assertion that a dismissal was proper, "because Florida law does not recognize a cause of action for negligent infliction of emotional distress without an accompanying physical injury." Gracey, 747 So.2d at 477.


We conclude that while the determinations by both the trial court and the district court relied upon general principles of Florida tort law and general application of the "impact rule," such does not accommodate the intent and purpose of section 491.0147 of the Florida Statutes and renders its protection meaningless. Accepting all well-pled allegations as true, which we are required to do because this case is before us on the dismissal of the

837 So.2d 352
action at the pleading stage,3 we determine that the plaintiffs have presented a cognizable claim for recovery of emotional damages under the theory that there has been a breach of fiduciary duty arising from the very special psychotherapist-patient confidential relationship recognized and created under section 491.0147 of the Florida Statutes

Decades ago, we commented on the nature of the fiduciary relationship:

If a relation of trust and confidence exists between the parties (that is to say, where confidence is reposed by one party and a trust accepted by the other, or where confidence has been acquired and abused), that is sufficient as a predicate for relief. The origin of the confidence is immaterial.

Quinn v. Phipps, 93 Fla. 805, 113 So. 419, 421 (1927). We have also accepted the concept that "[t]he purpose of a duty in tort is to protect society's interest in being free from harm." Casa Clara Condominium Ass'n, Inc. v. Charley Toppino & Sons, Inc., 620 So.2d 1244, 1246 (Fla.1993). Here, the Graceys allege that Eaker advertised himself as a licensed psychologist with special competence as a marital therapist. The relationship between Eaker and the Graceys was not merely of a casual nature, which states typically do not regulate. For profit, Eaker intentionally interjected himself between the Graceys in the role of confidant and counselor, and under a veneer of trust and confidence encouraged each to reveal without hesitation the most private of thoughts, emotions, fears, and hopes. Without justification or authorization, Eaker is alleged to have repaid this repositing of confidence in him by placing the dagger of damage in the very soul of the Graceys' marriage, thereby exacerbating the problem for which the Graceys sought his assistance.

The Florida Legislature has recognized and found that one's emotional stability and survival must be protected to the same extent as physical safety and personal security. Our representatives have declared for the people of Florida that "emotional survival is equal in importance to physical survival." § 491.002, Fla. Stat. (2001). To preserve the health, safety, and welfare of Florida's citizens, our Legislature found itself compelled to take action to protect the confidentiality of the communications involved in the most private and personal relationships interwoven with mental health practitioners. In undeniable terms the public policy of this state guards emotional survival, which the Legislature has declared "affects physical and psychophysical survival." It is with this background and structure that the Legislature intended to protect the delicate and fragile disclosures within the professional relationship when it established section 491.0147 of the Florida Statutes, which states in pertinent part: "Any communication between any person licensed or certified under this chapter and her or his patient or client shall be confidential." If this legislative provision is to have any life or meaning and afford reliable protection to Florida's citizens, our people must have access to the courts without an artificial impact rule limitation, to afford redress if and when the fiduciary duty flowing from the confidential relationship and statutory protection is defiled by the disclosure of the most personal of information.

In addition to our stated public policy and statutory structure of protection for certain confidential relationships, we have recently recognized the fiduciary duty generally arising in counseling relationships in Doe v. Evans, 814 So.2d 370, 373-75 (Fla. 2002). There, one having marital difficulties

837 So.2d 353
alleged that a priest intervened in the situation and during counseling activities breached a duty of trust and confidence by becoming sexually involved with her. See id. at 372-73. Recognizing the principles suggested in the Restatement (Second) of Torts, we noted that a fiduciary relationship does exist between persons when one is under a duty to act for or give advice for the benefit of another upon matters within the scope of the relationship. See id. at 374. Further, one in such a fiduciary relationship is subject to legal responsibility for harm flowing from a breach of fiduciary duty imposed by the relationship. See id.

With this backdrop of both common law and statutory protection the source of Eaker's duty to the petitioners is easily identified. The statutory scheme clearly mandated that the communications between the petitioners and Eaker "shall be confidential." § 491.0147, Fla. Stat. (1997). This created a clear statutory duty that, if violated,...

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