Q: My son was involved in a motorcycle accident. I am very distraught and losing sleep because he is hurt. Can I pursue a claim for emotional distress against the driver who hit my son?
A: If your child is a minor, you can pursue a claim in your own right for medical expenses and other economic loss related to your child’s injury, such as lost income when you stay at home from work to take care of your child. You can also recover for loss of companionship and services. Your child has a claim for personal injury, pain and suffering and other damages. A parent’s claim related to a child’s injuries is limited to minor children.
Personal injuries are known as torts (as contrasted with a breach of contract). In tort, a injured party is entitled to all damages that naturally and proximately flow from the wrongful act of another. However, Florida has a special rule with respect to emotional distress and mental anguish. In Florida, the impact rule generally requires physical injury from impact to recover for emotional distress. Basis for the rule is that mental distress is easy to “fake,” so requiring physical impact would at limit those eligible to make such claims to people with other injuries. Through time, the court came to understand that the impact rule probably stopped people who had true and substantial emotional distress from seeking damages. The court began chipping away at the rule.
The first exception to the rule was carved out where a plaintiff could show physical injury, even though the plaintiff did not suffer impact. Collapsing to the ground at the sight of your child’s injuries could qualify. Other physical harm accompanying mental distress, and apparently related to or caused by it, would also allow a plaintiff to sue under this exception.
The Florida Supreme Court created additional exceptions on a case-by-case basis stating in one decision “we recognize that there is a legitimate legal argument which can be directed against any particular legal theory upon which recovery in the instant case might be predicated and that the law does not provide a remedy for every wrong.” That is “judge speak” for “we understand that the exceptions we have created to the impact rule make it difficult to predict how any given might be decided.”
Because the rationale for the impact rule is that it helps prevent false claims, the Florida Supreme Court has found certain non-impact situations sufficiently reduce the likelihood of fabrication to allow mental distress claims to proceed without impact.
As pertinent to your case, the Florida Supreme Court has allowed recovery for emotional distress without impact when a person witnesses an injury inflicted on a close family member. Such claims can only be pursued if accompanied by “death or significant discernable physical injury” to the family member.
Other exceptions to the impact rule include claims for negligent childbirth, wrongful birth of a severely deformed child and claims for loss of companionship and services of a spouse.
The impact rule does not apply to intentional wrongful acts, where the primary damage is emotional distress. Intentional torts excluded from the impact rule include intentional infliction of emotional distress, defamation and invasion of privacy.
The impact rule generally applies to cases involving simple negligence. However, the Supreme Court’s case-by-case exception creation leaves open the possibility that exceptions can be expanded or stretched to apply in any given case.
Because of the evolving law in this area, you would be well advised to consult with an experienced attorney. The circumstances of your case include some of the bases for exception to the impact rule there may be circumstances not disclosed in your question does not play a part. As with most legal matters, advice of an experienced attorney at the earliest time is essential.