Sguros v. Biscayne Recreation Development Co., s. 85-2776

• Decision Date: 29 December 1987
• Docket Number: Nos. 85-2776,85-2909,s. 85-2776
• Citation: 528 So.2d 376,13 Fla. L. Weekly 26
• Parties: 13 Fla. L. Weekly 26 Joanna SGUROS, Personal Representative of the Estate of Peter Louis Sguros, deceased, for the benefit of Joanna Sguros, surviving spouse, and the Estate of Peter Louis SGUROS, individually, Appellant, v. BISCAYNE RECREATION DEVELOPMENT COMPANY, a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 376

528 So.2d 376

13 Fla. L. Weekly 26

Joanna SGUROS, Personal Representative of the Estate of Peter Louis Sguros, deceased, for the benefit of Joanna Sguros, surviving spouse, and the Estate of Peter Louis SGUROS, individually, Appellant, v. BISCAYNE RECREATION DEVELOPMENT COMPANY, a Florida corporation, Appellee.

Nos. 85-2776, 85-2909.

District Court of Appeal of Florida,

Third District.

Dec. 29, 1987.

Rossman, Baumberger & Peltz and Robert D. Peltz, Miami, for appellant.

Hayden & Milliken and John D. Kallen and Domingo Rodriguez, Miami, for appellee.

Joseph C. Segor, Miami, for the Academy of Florida Trial Lawyers as amicus curiae.

Before BARKDULL, HUBBART and JORGENSON, JJ.

ON MOTION FOR REHEARING GRANTED

The opinion of this court, filed on August 4, 1987, is withdrawn and the following is substituted in its stead.

JORGENSON, Judge.

Joanna Sguros appeals from a summary final judgment entered in favor of Biscayne Recreation Development Company [BRD] on a claim for the alleged wrongful death of her husband, Peter Sguros, due to BRD's failure to provide adequate security protection at Dinner Key Marina. ¹ We affirm the trial court's order because as a matter of law the impact doctrine bars this wrongful death action.

The relevant facts of this case may be summarized as follows. Peter and Joanna Sguros lived aboard their motorized sailboat, the "Scrimshaw," which was docked at Dinner Key Marina. The Sguroses had a written dockage agreement with the City of Miami which they had renewed annually since 1976. The agreement contained no provision for security services. On November 26, 1980, the City hired BRD as an independent contractor to operate and manage Dinner Key Marina. The contract between the City and BRD mentioned security as one of the services to be supplied by BRD, but did not specify the type, quality, or quantity of protection to be furnished by BRD. BRD subsequently subcontracted with Pan American Protective Industries, Inc., for private guard and patrol services. This contract was in effect at the time of Peter Sguros's death.

On November 21, 1981, the Sguroses were asleep on board the "Scrimshaw" when, at approximately 3:30 a.m., Peter was awakened by the sound of the engine starting. After alerting Joanna to the presence of intruders above deck, Peter attempted to turn the engine off from below by cutting the fuel line. At this time, he was stricken by a fatal heart attack. Joanna was unable to telephone for assistance since the telephone line had been severed. Armed with Peter's rifle, Joanna entered the cockpit, turned off the engine, and called to her neighbors to summon help. The Miami police, fire rescue personnel, and the medical examiner responded to the marina. Their investigation revealed that no one had observed intruders board or flee the "Scrimshaw," although one neighbor had been awakened by the sound of footsteps running down the pier immediately prior to Joanna's call for assistance. The investigators discovered that several of the vessel's lines had been untied, leaving the "Scrimshaw" secured by only one line. They also discovered that the telephone connection had been cut. No useful fingerprints were found. The intruders were never apprehended.

Following an autopsy of Peter Sguros, the associate Dade County medical examiner determined the cause of death to be arteriosclerotic cardiovascular disease. Fifty-nine-year-old Peter Sguros had suffered from severe coronary atherosclerosis and had been taking medications for his heart disease as prescribed by his personal physician.

Joanna Sguros instituted an action against BRD for the wrongful death of her husband. BRD moved for summary final judgment on the grounds that inter alia no cause of action against BRD existed in the absence of any impact or physical contact between Peter and the intruders. ² Following a hearing on the motion for summary final judgment, the trial court concluded that Joanna Sguros's wrongful death action was barred by the impact doctrine. ³ The trial court denied Joanna Sguros's motion for rehearing.

We affirm the trial court's order granting summary final judgment in favor of BRD upon a holding that the impact doctrine bars recovery. The impact doctrine precludes recovery for injuries caused by a defendant's negligence in the absence of physical impact to the claimant. Gilliam v. Stewart, 291 So.2d 593 (Fla.1974). In Gilliam, the Florida supreme court quashed an opinion from the district court of appeal, Stewart v. Gilliam, 271 So.2d 466 (Fla. 4th DCA 1972), which rejected the impact rule and permitted the plaintiff's cause of action for negligence in the absence of physical impact. The plaintiff in Gilliam had suffered a heart attack after seeing a car crash into her home. The supreme court held that the plaintiff could not maintain a cause of action for her injuries because she had not sustained any physical impact. In view of the rule requiring physical impact to a plaintiff as a predicate for recovering damages, it is clear that Sguros's action was properly disposed of by way of final summary judgment for BRD.

Under existing Florida law, injury induced or occasioned by mere observance of a traumatic event is insufficient to meet the physical impact requirement. See, e.g., Doyle v. Pillsbury Co., 476 So.2d 1271 (Fla.1985) (no recovery due to lack of impact where plaintiff, after observing large insect in can of peas she had opened, fell backwards over a chair in fright; no impact because plaintiff never ingested contents of can); Brown v. Cadillac Motor Car Div., 468 So.2d 903 (Fla.1985) (no cause of action for driver who experienced no physical impact or injury from accident where defective automobile lurched forward and killed driver's mother); Crenshaw v. Sarasota County Pub. Hosp. Bd., 466 So.2d 427 (Fla. 2d DCA 1985) (no cause of action for mother whose stillborn baby was inadvertently placed with hospital's laundry and mutilated due to absence of physical impact upon the mother); Davis v. Sun First Nat'l Bank of Orlando, 408 So.2d 608 (Fla. 5th DCA 1981) (act of robber in handing bank teller holdup note did not constitute physical impact and could not satisfy impact requirement to afford teller action for negligent infliction of emotional distress), rev. denied, 413 So.2d 875 (Fla.1982). Peter Sguros's apprehension resulting from the realization that intruders were aboard the "Scrimshaw" may not be considered "impact."

Moreover, the arguably nefarious intent of the nighttime intruders aboard the "Scrimshaw" fails to bring Sguros's action within the exception to the impact rule set forth in Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950). In Kirksey, the Florida supreme court held that liability would attach for a plaintiff's psychic injury engendered by a defendant's intentionally tortious conduct. Sguros's claim against the defendant, BRD, is based upon BRD's alleged negligence in providing security which clearly does not amount to willful, wanton, or malicious conduct. Kirksey is manifestly inapplicable to this case because the tortious acts which precipitated Peter Sguros's fear and heart attack were committed not by BRD but by third party, anonymous intruders whose criminal actions cannot be imputed to BRD. Crane v. Loftin, 70 So.2d 574 (Fla.1954), is similarly inapposite. Crane held that allegations that the defendant's train was operated at an excessive speed were insufficient to state a cause of action for the plaintiff's mental anguish based upon the alleged willful and wanton negligence of the defendant. Both Crane and Kirksey concerned the egregiousness of the defendant's tortious act in causing the plaintiff's emotional distress. Those cases do not address the issue of when an intentional tort committed by a criminal third party may be imputed to an allegedly negligent defendant.

Nor is the instant case within the parameters of the narrow exception to the impact rule developed by the Florida supreme court in Champion v. Gray, 478 So.2d 17 (Fla.1985). In Champion, the court modified the impact rule to recognize a cause of action for a plaintiff who suffers a "significant discernible physical injury when such injury is caused by psychic trauma resulting from negligent injury imposed on another who, because of his relationship to the injured party and his involvement in the event causing that injury, is foreseeably injured." Id. at 20. Pursuant to this modification, the personal representative of the estate of a woman who died of shock from the psychic trauma of seeing the body of her dead daughter at the automobile accident scene could maintain a negligence action against the driver of the car. Without disapproving Gilliam, the court fashioned a dichotomy between "two distinct emotional circumstances." Id. at 19. The first case involved fear for one's own safety as exemplified by Gilliam. The second case involved anxiety or stress for the injury or death of another, e.g., the case present in Champion. The court specifically restricted a cause of action to the second category. Peter Sguros's death unmistakably falls into the first category, thus barring his estate's recovery for BRD's negligence for Peter's death. See, e.g., Ferretti v. Weber, 513 So.2d 1333 (Fla. 3d DCA 1987) (plaintiff could not recover for emotional distress of witnessing automobile accident where "live-in" girlfriend was killed; even if they had been married, action would still have been dismissed for lack of impact).

Despite our strong view that the impact rule should be abolished, American Fed'n of Gov't Employees v. DeGrio, 454 So.2d 632, 639 (Fla. 3d DCA 1984) (Jorgenson, J., concurring in part, dissenting in part), aff'd, 484 So.2d 1 (Fla.1986); Rivera v. Randle Eastern Ambulance Serv., Inc., 446 So.2d 200, 202 n. 1 (Fla. 3d DCA 1984); National Car Rental Sys. Inc. v. Bostic, 423 So.2d 915, 918 (Fla. 3d DCA 1982) (Pearson, Daniel, J., concurring specially), rev. denied, 436 So.2d 97, 99 ...