The Latest on the Impact Rule

Since 1893 Florida jurisprudence has required some physical touching in order to recover for emotional distress. In Int’l Ocean Tele. Co. v. Saunders, 32 Fla. 434, 454 (Fla. 1893), the rule was created, which came to be known as the “impact rule,” and required not only a touching but a physical injury. Since that time, the Florida Supreme Court has steadily eroded, by either exceptions or interpretations, the restrictions of the impact rule. In Willis v. Gami Golden Glades, LLC, 967 So. 2d 846 (Fla. 2007), the Court held that a plaintiff could sustain an action for emotional injury without the presence of any actual physical injury so long as there was some physical contact. In that case, there was evidence that an assailant had made contact with the plaintiff’s left temple with a gun and made other physical contact when he searched the plaintiff’s body for money and other belongings. While the Court did not delineate the extent of physical contact necessary, it did indicate that the amount of touching in that case was “more than sufficient.” The Court cited with approval Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517, 527 (Fla. 3rd DCA 1985) which stated:

“The essence of impact, then, it seems, is that

the outside force or substance, no matter how

large or small, visible or invisible, and no

matter that the effects are not immediately

deleterious, touch or enter into the plaintiff’s

body.”

In Futch v. Wal-Mart Stores, Inc., 33 Fla. L. Weekly D1893 (Fla. 1st DCA, July 31, 2008), the appellate court was faced with a summary judgment granted by a trial court because of lack of physical injury under the impact rule. That case was a suit against Wal-Mart for an abduction which occurred to a Wal-Mart employee in the Wal-Mart parking lot which the plaintiff claimed was a result of inadequate security. There was conflicting evidence between the plaintiff’s deposition and an affidavit filed in opposition to the motion for summary judgment as to the extent, if any, of any physical touching. In her deposition, the plaintiff denied recalling whether she had been touched but in her affidavit explained that she misunderstood the word “touch” in her deposition to mean assaulted or sexually touched and that, in fact, she had to have been touched because she sat between her two assailants in a vehicle and one of them climbed over her so that it would have been impossible for her not to have been touched, however briefly.

The appellate court reversed the summary judgment rejecting the strictures of Ellison v. Anderson, 74 So. 2d 680 (Fla. 1954) which precludes an affidavit in opposition to a motion for summary judgment which directly contradicts prior sworn testimony. The Court explained that Cary v. Keene Corp., 472 So. 2d 851, 853 (Fla. 1st DCA 1985) and Croft v. York, 244 So. 2d 161, 165 (Fla. 1st DCA 1971) exclude from the application of the Ellison rule affidavits which give a credible explanation for the discrepancy in testimony or which recall that which could not be recalled during the testimony. Citing Willis, supra, and Eagle-Picher Industries, the Court held that the summary judgment was improvidently entered in light of the touching, however slight, suffered by the plaintiff.

The impact rule is alive in Florida but barely on life support. Its constant erosion is premised on the supposition that juries are perfectly capable of determining whether emotional or psychological injury exists in the absence of a concurrent physical injury. The logic of requiring a mere touching eludes intellectual analysis. If the purpose of the impact rule to begin with was to prevent fraud, it is hard to imagine how someone being brushed by an assailant satisfies that purpose. That the impact rule exists at all has become a monument to tradition rather than logic.

Originally published in November 2008