Champion v. Gray

This is a petition to review Champion v. Gray, 420 So.2d 348 (Fla. 5th DCA 1982), which certified the following question to this Court as a matter of great public importance:

I. SHOULD FLORIDA ABROGATE THE “IMPACT RULE” AND ALLOW RECOVERY FOR THE PHYSICAL CONSEQUENCES RESULTING FROM MENTAL OR EMOTIONAL STRESS CAUSED BY THE DEFENDANT’S NEGLIGENCE IN THE ABSENCE OF PHYSICAL IMPACT UPON THE PLAINTIFF?

Id. at 354. We have jurisdiction under article V, section 3(b)(4) of the Florida Constitution. To a limited extent we modify our previous holdings on the impact doctrine and recognize a cause of action within the factual context of this claim.

The complaint in this case alleged that a drunken driver ran his car off the road, striking and killing Karen Champion. Karen’s mother, Joyce Champion, heard the impact, came immediately to the accident scene, saw her daughter’s body, and was so overcome with shock and grief that she collapsed and died on the spot. Walton Champion, as personal representative of his wife’s estate, then brought this action for damages caused by the driver’s negligence which led to Mrs. Champion’s death. Relying on Gilliam v. Stewart, 291 So.2d 593 (Fla.1974), and Claycomb v. Eichles, 399 So.2d 1050 (Fla. 2d DCA 1981), the trial court dismissed the complaint. The district court affirmed the dismissal, following the longstanding Florida rule that a plaintiff must suffer a physical impact before recovering for emotional distress caused by the negligence of another. The district court questioned the continued validity of the impact rule and certified its question as one of great public importance.

In Gilliam v. Stewart we quashed an opinion of the Fourth District Court of Appeal, Stewart v. Gilliam, 271 So.2d 466 (Fla. 4th DCA 1972), which recognized a cause of action for a woman who suffered a heart attack when a vehicle struck her home. In doing so we implicitly approved that part of Judge Reed’s dissent which stated:

I take it that there is more underlying the impact doctrine than simply problems of proof, fraudulent claims, and excessive litigation. The impact doctrine gives practical recognition to the thought that not every injury which one person may by his negligence inflict upon another should be compensated in money damages. There must be some level of harm which one should absorb without recompense as the price he pays for living in an organized society.

Id. at 477. We now conclude, however, that the price of death or significant discernible physical injury, when caused by psychological trauma resulting from a negligent injury imposed upon a close family member within the sensory perception of the physically injured person, is too great a harm to require direct physical contact before a cause of action exists. We emphasize the requirement that a causally connected clearly discernible physical impairment must accompany or occur within a short time of the psychic injury.

We reach this conclusion after careful evaluation of Gilliam v. Stewart, cases from other jurisdictions, and public policy arguments presented to us here. In doing so we have considered the traditional rules of duty and forseeability in these situations and have been mindful of the possibility of fraudulent and undefinable claims where psychic trauma is claimed.

There are at least two distinct emotional circumstances: one caused by fear for one’s own safety and one caused by anxiety or stress for the injury or death of another. The former is basically that which existed in Gilliam v. Stewart and is more readily recognized as a basis for a cause of action in other jurisdictions. The second is what exists here and is akin to the facts in Dillon v. Legg, 68 Cal.2d 728, 441 P.2d 912, 69 Cal.Rptr. 72, (1968). The “zone of danger” test utilized by many jurisdictions works well for “fright” cases but not so well for emotional distress claims. In Dillon a mother admittedly outside the “zone of danger” sought to recover for physical injuries resulting from the fright and shock of seeing her daughter killed by a negligent driver. The California Supreme Court rejected arguments that the fear of fraud by plaintiffs and unlimited liability for negligent defendants justified the “zone of danger” rule. The Dillon court reasoned that the fear of fraud should not bar meritorious claims. To limit the potential for unlimited liability, the court adopted a reasonable foreseeability test.

We note, first, that we deal here with a case in which plaintiff suffered a shock which resulted in physical injury and we confine our ruling to that case. In determining, in such a case, whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology, whether defendant owes plaintiff a duty of due care, the courts will take into account such factors as the following: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

The evaluation of these factors will indicate the degree of the defendant’s foreseeability: obviously defendant is more likely to foresee that a mother who observes an accident affecting her child will suffer harm than to foretell that a stranger witness will do so. Similarly, the degree of foreseeability of the third person’s injury is far greater in the case of his contemporaneous observance of the accident than that in which he subsequently learns of it. The defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical harm than to anticipate that someone distant from the accident will suffer more than a temporary emotional reaction. All these elements, of course, shade into each other; the fixing of obligation, intimately tied into the facts, depends upon each case.

Id. 68 Cal.2d at 740-41, 441 P.2d at 920-21, 69 Cal.Rptr. at 80-81 (emphasis in original). Several jurisdictions have adopted the Dillon foreseeability test. Barnhill v. Davis, 300 N.W.2d 104, (Iowa 1981); Culbert v. Sampson’s Supermarkets, Inc., 444 A.2d 433 (Me.1982); Corso v. Merrill, 119 N.H. 647, 406 A.2d 300 (1979); Portee v. Jaffee, 84 N.J. 88, 417 A.2d 521 (1980); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).

The pure foreseeability test, espoused by some, might lead to claims that we are unwilling to embrace in emotional trauma cases. We perceive that the public policy of this state is to compensate for physical injuries, with attendant lost wages, and physical and mental suffering which flow from the consequences of the physical injuries. For this purpose we are willing to modify the impact rule, but are unwilling to expand it to purely subjective and speculative damages for psychic trauma alone. We recognize that any limitation is somewhat arbitrary, but in our view is necessary to curb the potential of fraudulent claims, and to place some boundaries on the indefinable and unmeasurable psychic claims.

Foreseeability is the guidepost of any tort claim. Because we are dealing with an unusual and nontraditional cause of action in allowing damages caused by psychic injury following an injury to another, however, public policy comes into play and some outward limitations need to be placed on the pure foreseeability rule. We have already referred to the requirement of a significant discernible physical injury. In addition the psychically injured party should be directly involved in the event causing the original injury. If such a person sees it, hears it, or arrives upon the scene while the injured party is still there, that person is likely involved. The English case of McLoughlin v. O’Brian, 2 All E.R. 298 (1982), adopting a pure foreseeability rule, allowed recovery when a parent suffered psychic injury upon seeing her child in the hospital shortly following an accident. We do not say whether or not we would or would not recognize a claim under such circumstances, but, if so, we would think that this scenario reaches the outer limits of the required involvement in the event. Another factor in the foreseeability requirement is that the secondarily injured party must have an especially close emotional attachment to the directly injured person. A child, a parent, or a spouse would qualify; others may or may not, depending upon their relationship and the circumstances thereof.

The complaint in the case sub judice alleges that Mrs. Champion heard the accident, came immediately to the accident scene, and suffered severe emotional distress and shock which led to her death shortly after seeing her injured child. The requirements set out in this opinion have been met. No physical impact to her need be alleged because she suffered discerna-ble physical injuries (death).

Accordingly, we answer the certified question, as limited, in the affirmative. We hold that a claim exists for damages flowing from 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.

The district court’s decision is quashed, and the district court is directed to remand the case for proceedings consistent with this opinion.

It is so ordered.

BOYD, C.J., OVERTON, EHRLICH and SHAW, JJ., concur.

ADKINS, J., concurs specially with an opinion.

ALDERMAN, J., concurs specially with an opinion in which SHAW, J., concurs.

. Mental distress unaccompanied by such physical consequences, on the other hand, should still be inadequate to support a claim; nonphysical injuries must accompany and flow from direct trauma before recovery can be claimed for them in a negligence action.

. In a collateral case issued this day, Brown v. Cadillac Motor Car Div., General Motors Corp., 468 So.2d 903, we held that Brown’s judgment must be vacated because his psychic trauma was not manifested by physical injury and no cause of action lies for psychic trauma alone.

. Those jurisdictions that do not have the impact rule differ in the damages recoverable by a plaintiff. Some jurisdictions allow recovery for psychic trauma alone without either physical injury or a "zone of clanger” fright, see, e.g., Molien v. Kaiser Foundation Hospitals, 27 Cal.3d 916, 616 P.2d 813, 167 Cal.Rptr. 831 (1980), and Versland v. Caron Transport, Mont., 671 P.2d 583 (1983); some limit that recovery to physical consequences of emotional trauma, see, e.g., Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979), and Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (1978); while others allow no emotional distress damage when caused by an injury to another, see, e.g., Tobin v. Grossman, 24 N.Y.2d 609, 249 N.E.2d 419, 301 N.Y. S.2d 554 (1969).

. We reiterate that a claim for psychic trauma unaccompanied by discernible bodily injury, when caused by injuries to another and not otherwise specifically provided for by statute, remains nonexistent.