November 23, 2014

Negligence Law

Cause and Effect

Judges and trial lawyers point to the latest impact rule case to go to the Supreme Court as evidence that 'new, workable rules' are necessary.

Pat Dunnigan | 3/1/2005
When Marjorie Willis arrived at her hotel in North Miami Beach, a security guard directed her to park in a lot across the street. Willis wasn't comfortable with that idea. In town on a visit, the Port Orange woman didn't know the area, the lot was dark and she was by herself. She wanted the guard to accompany her.

He said no, assuring her that the parking lot was safe.

Nonetheless, she followed the guard's direction. When she got out of her parked car, a mugger put a gun to her head, frisked her under her clothes, grabbed her purse and drove off with her rental car.

Even then, Willis says, neither the security guard nor hotel employees offered her help.

The next day, a traumatized, though physically uninjured Willis sought treatment in a hospital emergency room. Today, five years later, her lawyers say Willis is on medication to treat the anxiety, panic attacks, depression and post-traumatic stress disorder that resulted from the incident. "She is a basket case," says lawyer David P. Lister of Martin, Lister & Alvarez in Miami Lakes.

Do the hotel and security company bear any responsibility for her suffering?

That depends on how the Florida Supreme Court decides to interpret the state's "impact rule" -- one of the murkiest concepts in negligence law and one that frequently leaves lower courts entangled in questions of cause and effect.

Both the trial judge and the 3rd District Court of Appeal have ruled against Willis' claims on the grounds that she doesn't meet the impact rule's requirements, but the appellate court certified the issue to the Florida Supreme Court as a matter of "great public importance." Among the questions the 3rd DCA is asking the court to resolve is one that gets right to the point: "Should the impact rule be abolished?"

The impact rule "has become so riddled with exceptions that it resembles Swiss cheese."

At its best, the rule prevents the civil justice system from becoming bogged down in emotional distress cases by requiring that emotional suffering "must flow from physical injuries." At its worst, it creates an arbitrary barrier for the victims of serious negligence simply because their emotional injuries can't be linked to any physical harm or to actions that can be described as physical "impact" -- a word that has many torturous and hair-splitting interpretations in the case law.

Unpopular with both judges and trial lawyers, the impact rule is a concept that some say is more trouble than it's worth.

"The impact rule should be abolished because it is arbitrary, unworkable and does not well serve its purpose," argues Coral Gables appellate lawyer Barbara Green, who is representing Willis before the Florida Supreme Court.

The Florida Academy of Trial Lawyers, which has filed a friend-of-the-court brief in the case, makes a similar argument. "The court should acknowledge that its attempt to adhere to the impact rule has been unsuccessful," argues Miami lawyer Robert S. Glazier for the academy.

Glazier proposes a new standard that would require a plaintiff to show that it was "reasonably foreseeable" that a defendant's negligent conduct would cause "severe emotional distress" and that the plaintiff did suffer severe emotional distress as the result of such conduct.

But Coconut Grove lawyer Thomas J. Morgan, who represents American Knights Security in the case, argues that there's no getting around the fact that emotional distress cases inherently require difficult and subjective determinations. What the Academy of Florida Trial Lawyers and petitioners propose "is replacing one question of degree with another."

Tags: Politics & Law, Government/Politics & Law

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