INTERNAL MEMORANDUM

Attorney Work Product Privileged & Confidential

TO: Junior Associate

FROM: Senior Partner

DATE: August 14, 2020

RE: Jose Corddry; Potential Action for Negligent Infliction of Emotional

Distress

Our office represents Jose Corddry, a childcare provider for two children, who lives in New York City. Mr. Corddry reached out to us after witnessing a traumatic event involving one of the children in his care. On February 15, 2020, one of the children fell off an airboat in Collier County, Florida, and was seriously injured by the fall and by an impact with the boat’s propeller engine. Mr. Corddry was not injured in the accident, but shortly afterward, he began to exhibit physical injuries brought on by extreme stress and emotional trauma. You will find the relevant facts in the attached case file, which includes the following documents: an email exchange between our Florida and New York offices; a transcript of our meeting with Mr. Corddry; a letter and report from Mr. Corddry’s doctor; a news story about the accident; and the incorporation documents for the airboat company. We are considering filing a lawsuit against the airboat operator for negligent infliction of emotional distress. Because the accident occurred in Florida, Florida state law is binding. Also, because the parties are citizens of different states—Mr. Corddry lives in New York City and the airboat company is based in Florida—we would file the lawsuit in federal court, in the Middle District of Florida, based on diversity jurisdiction. The Middle District of Florida has jurisdiction over Collier County, Florida, where the accident occurred and the airboat company is incorporated.

In Florida, if a plaintiff has not suffered an impact, a negligent infliction of emotional distress claim requires four elements: “(1) the plaintiff must suffer a physical injury; (2) the plaintiff's physical injury must be caused by the psychological trauma; (3) the plaintiff must be involved in some way in the event causing the negligent injury to another; and (4) the plaintiff must have a close personal relationship to the directly injured person.” Zell v. Meek, 665 So. 2d 1048, 1054 (Fla. 1995). Based on preliminary research, I have found and attached the above-referenced case and three others. While we continue to gather the relevant facts, please prepare a partial memorandum and complete memorandum analyzing whether Mr. Corddry is likely to establish the first element—that he suffered a physical injury. Focus your analysis of the physical injury element on the following: whether the injury is demonstrable and objectively discernible, and whether the injury is more than a common ailment or psychological harm. Please incorporate all four cases, and rely on the facts in the case file and the instructions below.

Partial and Complete Memoranda LComm I—Professor Zuckerman

Heading and Question Presented Due Week 3

Partial Memo Due Week 4 Complete Memo Due Week 7

For the first major LComm I assignment, you will write a legal memorandum. First, you will start by writing a heading and question presented. Next, you will write a partial memorandum with a heading, question presented, brief answer, and the first three parts of the CREAC analysis: Conclusion, Rule, and Explanation. After I provide feedback on the partial memorandum, you will write a complete memorandum with a heading, question presented, brief answer, statement of facts, and discussion section with a complete CREAC analysis. The final graded assignments for this course will build on these ungraded assignments. Thus, the work you complete in these first few weeks—in analyzing the legal authorities and writing your partial and complete memos—can influence your final LComm I grade.

Instructions

Format The partial memo assignment has a strictly enforced limit of four pages. The complete memo assignment has a strictly enforced limit of eight pages. The integrity certification is the only section excluded from the page limit. The memos should be in 14-point Times New Roman font with one-inch margins, page numbers at the bottom center of each page after page one, full-justified margins, and double spacing. Integrity Certification Add the following certification at the bottom of the assignments, if you can do so honestly: I certify that I have complied with the academic integrity requirements of the School of Law Honor Code and the instructions and policies set forth by my professor. I have neither given nor received any unauthorized assistance in preparing this assignment. [Your Name]

Submission Save your assignments in .doc or .docx with a filename that includes your last name (e.g., SmithPartialMemo). Be prepared to discuss your heading and question presented in class in Week 3. Submit your partial memo to the Blackboard Assignment Drop Box for “Partial Memo” before class Week 4. Submit your complete memo to the Blackboard Assignment Drop Box for “Complete Memo” before class Week 7. Refer to your Syllabus for information regarding the consequences of missing a deadline or failing to follow instructions. If Blackboard is down when the assignment is due, you may email the document me. Do not email the document unless Blackboard—not your computer—is down. Personal computer problems are not a legitimate excuse for missing the deadline. Good-Faith Effort Required You must make a good-faith effort on ungraded assignments. Failing to do so can result in a deduction from your professionalism score and your final grade for the course. I may also ask you to do additional work or complete another assignment. Most important, a good-faith effort is required for you to fully benefit from these ungraded assignments and master the learning objectives for this course. Collaboration & Academic Integrity Rules You are expected to follow the Honor Code and Syllabus when completing these assignments. Refer to those documents for more information on the consequences of inappropriately using others’ work and failing to properly attribute ideas. If you have any questions or concerns about this assignment, you may talk to your LComm professor. You may also talk to other students in your LComm section about the legal authorities relevant to this assignment or the general approach to your analysis. You may not speak or consult with anyone else, including friends, partners, or family members.

You must write your own assignment. You must not read, copy, or review another student’s work (whether digital or hardcopy), and you must not have another student (or anyone else) read, copy, or review your work. These rules cover not only the substance of your written work, but also the organizational structure, grammar, punctuation, style, citations, and other aspects of your writings. Because we will work on similar assignments throughout the semester, this prohibition includes both pending and completed written assignments.

Evaluation

The partial and complete memo assignments will be evaluated based on the following criteria: Professionalism 1. Follows all instructions and formatting requirements for the assignment. 2. Submits assignment correctly and on time. Heading & Document Organization 1. Includes the recipient’s name, the author’s name, the proper date, and a useful

subject line. 2. Includes all sections of a legal memorandum in the correct order with properly

formatted section headings. Question Presented 1. Provides jurisdiction, legal rule, and legally significant facts. 2. States question to allow for yes-or-no answer.

Brief Answer 1. Provides yes-or-no answer that is qualified appropriately. 2. Provides brief explanation, including a concise summary of the relevant law and

analysis. Statement of Facts 1. Develops relevant background giving rise to dispute. 2. Develops well-organized and objective factual story. 3. Concisely describes relevant facts, both favorable and unfavorable. 4. Omits irrelevant facts, argument, and legal discussion. 5. Ends with a transition to introduce the analysis. Discussion (Note: Only nos. 1-6 apply to the partial memo assignment) 1. Organizes discussion logically using framework for legal analysis (CREAC). 2. Uses paragraphs, thesis statements, and transitions to tie analysis together. 3. Begins with a Conclusion that identifies the precise legal issue, states a prediction

on the outcome, and provides a supporting reason. 4. Accurately identifies the controlling Rule(s). 5. Identifies and synthesizes the controlling law. 6. Explains and illustrates the controlling law using relevant cases and legal

principles.

7. Analyzes the client’s facts by applying the controlling law. 8. Draws relevant analogies and distinctions that are specific, substantive, and

parallel to provide a fully developed Analysis. 9. Includes a fully developed counter-analysis with relevant analogies and

distinctions. 10. Provides a resolution following the counter-analysis. 11. Ends with a Conclusion that identifies the precise legal issue, states a prediction

on the outcome, and provides a supporting reason. Writing Style 1. Uses headings, transitions, topic sentences, and thesis statements. 2. Has no spelling, grammar, punctuation, or typographical errors. 3. Uses objective tone. 4. Uses direct, plain language and active voice. Citation 1. Cites authority for all legal propositions and case references. 2. Uses appropriate form, placement, and frequency. 3. Follows The Bluebook or Florida Rule of Appellate Procedure 9.800, as appropriate.

MEMORANDUM1 TO: Professor Zuckerman FROM: Student name DATE: Submission date RE: Client name; file number; a phrase identifying the legal issue

Question Presented

Under … [state the controlling law], … does … [state the legal issue] … when

… [state key facts]?

Brief Answer

State the direct answer to Question Presented immediately: yes, no, probably

yes, or probably not. Then summarize the rule(s) of law governing the issue. Then

summarize the reasoning that supports your answer. Include specific references to

facts. Do not include citations to legal authority.

Discussion

Conclusion2: The first sentence(s) should state your conclusion on the legal

issue in the Question Presented.

Rule: The rule section follows the conclusion sentence(s) so that both of

these sections make up the first paragraph of your Discussion. In the rule section,

1 This is the template for the partial memorandum. 2 The terms in bold are for guidance purposes only. Do not write out Conclusion, Rule, Explanation, etc. in your memo.

you should set forth the relevant broad rule(s) relating to the legal issue, with

citations to statutes and/or cases. Remember to define key terms.

Explanation: The rule explanation section includes several paragraphs and

shows how courts have applied the rule of law in other cases. Each paragraph should

begin with a thesis sentence, typically stating a narrow rule from the case you are

explaining. Use case descriptions that illustrate and support the thesis sentence.

Include key facts, the court’s holding, and the court’s reasoning. Remember to

include appropriate citations.

Consider the appropriate depth of treatment for each case. For example, if you

are using two cases for the same narrow rule, the same paragraph can include a case

description for the best case and a citation with an explanatory parenthetical for the

other case. Do not discuss your client’s case in the rule explanation section.

[Add Integrity Certification and your name here.]

[insert page number here]

MEMORANDUM3 TO: Professor Zuckerman FROM: Student name DATE: Submission date RE: Client’s name; file number; and a phrase identifying the legal issue

Question Presented

Under … [state the controlling law], … does … [state the legal issue] … when

… [state key facts]?

Brief Answer

State the direct answer to Question Presented immediately: yes, no, probably

yes, or probably not. Then summarize the rule(s) of law governing the issue. Then

summarize the reasoning that supports your answer. Include specific references to

facts. Do not include citations to legal authority.

Statement of Facts

The Statement of Facts should include several paragraphs. The first paragraph

should identify your client and briefly describe your client’s goal. Remember to

identify key facts that determine the outcome of your Question Presented. Include

background facts as necessary to provide context to those legally significant facts.

Remember to include all facts that you will analyze in your application section. Do

3 This is the template for the complete memorandum.

not refer to legal authorities or make arguments. Organize your statement of facts in

a logical order (chronological, topical, or combination). The last paragraph should

describe the current procedural posture, summarize any relevant procedural history,

and provide a smooth transition to the Discussion.

Discussion

Conclusion4: The first sentence(s) should state your conclusion on the legal

issue in the Question Presented.

Rule: The rule section follows the conclusion sentence(s) so that both of

these sections make up the first paragraph of your Discussion. In the rule section,

you should set forth the relevant broad rule(s) relating to the legal issue, with

citations to statutes and/or cases. Remember to define key terms.

Explanation: The rule explanation section includes several paragraphs and

shows how courts have applied the rule of law in other cases. Each paragraph should

begin with a thesis sentence, typically stating a narrow rule from the case you are

explaining. Use case descriptions that illustrate and support the thesis sentence.

Include key facts, the court’s holding, and the court’s reasoning. Remember to

include appropriate citations.

[insert page number here]

4 The terms in bold are for guidance purposes only. Do not write out Conclusion, Rule, Explanation, etc. in your memo.

Consider the appropriate depth of treatment for each case. For example, if you

are using two cases for the same narrow rule, the same paragraph can include a case

description for the best case and a citation with an explanatory parenthetical for the

other case. Do not discuss your client’s case in the rule explanation section.

Application: The application section includes several paragraphs and shows

how a court will likely apply the rule of law explained above to the facts of your

client’s case. Each paragraph should begin with a thesis sentence that supports your

legal analysis and conclusion. Discuss the facts of your case that illustrate and

support the thesis sentence. Remember to make fact-to-fact comparisons between

your client’s case and the cases cited in your rule explanation section. Using analogy

and distinction, demonstrate why your client’s case is similar to or different from the

cases cited in your explanation. Include legal citations where appropriate.

Then provide a counter-analysis. The counter-analysis should also make

fact-to-fact comparisons between your client’s case and the cases cited in your rule

explanation section. Use case analogies and distinctions. After you explain the

counter-analysis, provide a clear resolution stating why your position/conclusion is

more likely to prevail. Do not introduce any new law in the application section. You

should have thoroughly discussed the applicable law in the rule statement and

explanation sections above.

[insert page number here]

Conclusion: Include one or more sentences briefly restating your conclusion,

but do not copy-and-paste the first conclusion. Remember to avoid one-sentence

paragraphs.

Conclusion

This Conclusion section should tie together and summarize the legal issue(s)

in your Discussion section. It should provide more detail than the Brief Answer, but

less than the Discussion.

[Add Integrity Certification and your name here.]

[insert page number here]

Jose Corddry Case File

File No.: 20-113

Date: Tuesday, July 21, 2020, 9:11 a.m. From: li-yan.see@yourlegalteam.com From: mckay.shrivinas@yourlegalteam.com

Subject: Re: Corddry case—medical report Attachments: Client-Counsel Interview with Jose Corddry

Hi again. Just so we all have the same documents in the file: I’m attaching the transcript of Friday’s meeting and the letter from Jose’s doctor, along with the doctor’s notes. Li-yan

Date: Friday, July 17, 2020, 8:11 a.m. From: li-yan.see@yourlegalteam.com From: mckay.shrivinas@yourlegalteam.com

Subject: Re: Corddry case—news story This is really helpful. Thanks for going above and beyond, as always. Li-yan

Date: Thursday, July 16, 2020, 5:13 p.m From: mckay.shrivinas@yourlegalteam.com To: li-yan.see@yourlegalteam.com

Subject: Corddry case—news story Attachment: Airboat news story

Li-yan, I was googling around about the company and found a short news story on the accident. It’s attached. McKay

Date: Thursday, July 16, 2020, 4:44 p.m. From: mckay.shrivinas@yourlegalteam.com To: li-yan.see@yourlegalteam.com

Subject: Re: Corddry case Attachment: Thriller Airboat Incorporation Document Hey Li-yan,

Sure thing. It’s a company out of Collier County, not far from us. Naples is the county seat here—it’s straight across the state if you’re not familiar. Let me know what else you need. McKay

Date: Thursday, July 16, 2020, 4:10 p.m From: li-yan.see@yourlegalteam.com To: mckay.shrivinas@yourlegalteam.com Subject: Corddry case Hi McKay, I hope everything’s going well down there in Florida. Just wanted to follow up on the Corddry case. I have a meeting with Jose scheduled for tomorrow. Did you figure out where the airboat company was incorporated? Appreciate it, Li-yan Li-yan See, Partner

RAPHAEL, SAWYER, & SEE, LLP 666 Fifth Avenue 21st Floor; New York, NY 1010

RAPHAEL, SAWYER, & SEE, LLP 1100 S. Fifth Avenue, Suite 307, Naples, FL 34102

Attorney-Client Privilege

Attorney Work-Product

Transcript of Telephonic (Zoom) Client Meeting

Client name: Jose Corddry File No.: 20-113 Attorney: Li-yan See Date: 7.17.2020

See: Hi Jose. Thanks for logging in to see me on Zoom today.

Corddry: Sure thing.

See: I’d like to ask you some questions about the accident that occurred on Saturday, February 15th. Is that ok? Are you ready to talk about it?

Corddry: Yeah. I’d like to get this over with.

See: I understand. It’s very stressful. Ok, let’s start with your relationship with the Shields-Rayburn family. Can you tell me about your position with the family, how long you’ve worked for them?

Corddry: I started working for them in May 2009. That was right after Elliott and Lois were born. Um, Quincy, hired me because she and Terry were leaving New York for the summer and their other nanny couldn’t come with them.

See: And Terry is Quincy’s wife?

RAPHAEL, SAWYER, & SEE, LLP

FLORIDA-GEORGIA-NEW YORK

Corddry Interview Page 2 of 9

Corddry: Oh yeah, sorry. It was Terry Rayburn. But they hyphenated when they got married. All four of them have the same last name: Shields-Rayburn.

See: How old are Lois and Elliott now?

Corddry: Their birthday is April 28, 2009, so they are 11 now.

See: And you’ve been working for them since that first summer in 2009?

Corddry: Pretty much. They hired another nanny back in September that first year but kept me on part-time. That arrangement, though, only lasted a couple months. I moved in with them right after Thanksgiving that year to take care of the kids full time, and I’ve been living with them ever since.

See: Do you take any time off for yourself?

Corrdry: Oh, sure. Terry and Quincy are super generous. I’m off

See:

on the weekends, and I stay with my girlfriend most of the time then. We’ve been pretty serious for the past three years. We have a great dog, Pax. And I have six weeks of paid vacation in the summer when Lois and Elliott are in summer camp in Hendersonville, down in North Carolina. They say I’m part of their family, and they really mean it. I’ve been a member of the family for 11-plus years.

And you take family trips together?

Corrdry: Yeah, a few times a year. We spend the summers in North Carolina. Last year, we went to St. Lucia and Montreal too.

See: And are you working on those trips?

Corrdry: Yep, but it doesn’t even feel like work. Quincy and Terry work a lot, even when we’re traveling. So especially then, I’m taking care of Elliott and Lois pretty much full time. Terry produces television shows, so sometimes we travel for that. The last one she just finished was that Outlandish series on Showtime. It was up for a Golden Globe, but they lost. And Quincy—she’s an entertainment lawyer. That’s how they met—she was handling some contracts for Terry’s production company. So, I take care of the kids when

Corddry Interview Page 3 of 9

See:

Quincy and Terry are working or when they want a date night or want to go on to the spa or an excursion that wouldn’t be good for the kids. Like one year, when the kids were smaller, they went zip lining and once, I think it was, white water rafting. Or they’ll do a spa day. Elliott and Lois were too little for that. But then we all hang out together as a family too. We have game nights and go out to eat and all that.

And you all went to Florida in February?

Corrdry: Yeah, for President’s Day weekend. We always take a trip. Usually skiing. Lois and Elliott are actually really good snowboarders. But this year, Terry said they all needed some sunshine so they rented a house on the beach in Sanibel Island.

See: How long were you in Sanibel?

Corrdry: Me? Four days. We got there on a Thursday night and I took Lois back to New York on Sunday night so she could get back to school. Terry and Quincy stayed behind with Elliott because he was still in the hospital.

See: I know this is really hard, but I need you to tell me about what happened.

Corrdry: Ok, uh, I don’t know where to begin.

See: Just start by telling me about the day of the boat ride. That was Saturday, the third day of your trip?

Corrdry: Yeah. It was a totally normal morning. Maybe a little too chilly for the beach, so we were excited to try something new. Elliott and Lois didn’t know what an airboat was, so I showed them a couple videos on YouTube. They were excited.

See: And the whole family went on the boat ride?

Corddry: No, it was just me and the kids. Quincy and Terry organized it, but they said they needed a quiet day by the beach. So, it was just the three of us—me and Lois and Elliott. We left about 11 in the morning and we stopped to get hot dogs at this place Schnapper’s Hots. They love that place.

Corddry Interview Page 4 of 9

See: And then you drove to the Everglades for the boat

tour?

Corddry: Yeah, so we drove, maybe 45 minutes for this tour, Captain Thriller’s Airboat Adventures. Lois liked that name. She asked me to play Michael Jackson’s Thriller, over and over again on the way there.

See: Tell me about what it was like when you got to the tour company.

Corddry: There were three employees there. One person inside—I don’t know her name—she gave us the tickets. And then we went outside and met Captain Thriller, who said his name was actually Captain Joe. And then there was one other employee who helped us with our life jackets and stuff.

See: I believe their names are Joe Kincaid and Mitch Kinhagee?

Corddry: Yeah, that sounds right.

See: I understand that the weather deteriorated after the boat tour began?

Corddry: It was perfectly sunny up in Sanibel. We ate our hot dogs outside on picnic benches, and Elliott was right in the full sun—he has fair skin—so I stopped him from eating for a minute to spray some sunscreen on him. But yeah, when we got down to the tour, the sky had become all gray and it looked like thunderstorms would come pouring down any second. I asked those guys if it was ok to go out, and they said, it was no problem, that the storm was going the other way. They said the tour was only 45 minutes, and there’s no way the storm would come before then.

See: But that’s not what happened?

Corddry: No, it started raining as soon as we pulled away from the dock. I think it was thundering too, but it was hard to tell with that crazy loud airboat motor.

See: The tour continued in the rain?

Corddry Interview Page 5 of 9

Corddry: Yeah, we went out into the swampland and I wasn’t sure

how bad it was storming until we stopped. The other guy, Mitch, was supposed to tell us about the various birds in the trees. It’s supposed to be a good bird watching spot where we stopped. But the rain was just pelting us. We had rain jackets on, but it was pouring. And when we stopped, and you know, the motor was off, you could definitely hear the thunder.

See: How long were you stopped for?

Corddry: I don’t know. Maybe 5 minutes? Maybe less. It all went so fast.

See: Can you tell me what happened next?

Corddry: That guy, Mitch, was trying to tell us about the birds, but it was just raining too hard. So, he signaled to the captain to head back. Lois and Elliott were sitting on either side of me on this bench seat. Elliott was on my left. I don’t even remember looking away, but all of a sudden, the boat was moving forward again and there was this loud roar, and then I see Elliott falling into the water. He went backwards and just flipped into the water. It was black in there and I couldn’t see him. I told Lois to hold on tight and climbed over her to try to see him. The boat had zipped away so we were probably 30 or 40 feet away.

See: Did Elliott fall into the water from Lois’ side of the boat?

Corddry: Um, no, but that boat, it goes back and forth in a zig zag, so when I looked back, I thought I saw Elliott’s arm in the water on her side of the boat. We circled back. And then I saw the captain in the water asking for Mitch’s shirt. Mitch pulled Elliott back on the boat and then the captain tied the shirt around his arm.

See: Around Elliott’s arm?

Corddry: Yeah, he got cut up real bad on his fall. He hit his head on the way in because the doctors said there was swelling. Everything was in slow motion, but I guess he was under water and not breathing for a long time. I mean, we had to circle back to find him and get him

Corddry Interview Page 6 of 9

out of the water. His arm hit the motor. We should never have gone. It was raining. I knew it was dangerous. The captain bragged at the beginning about what an adventure we were going on and showed this huge scar across his hand and a missing finger! He said he was an alligator wrestler and a gator bit it off.

See: How did Elliott seem after coming out of the water?

Corddry: He was entirely blue. He didn’t open his eyes or say anything. His arm was bleeding really bad and soaked the shirt. I don’t even remember how we got back to the dock. They tried to wrap up his arm again then. And then we heard the helicopter.

See: And he was taken to the Ryder Trauma Center at Jackson Memorial Hospital?

Corddry: Yeah, I had to call Quincy and Terry and tell them what happened. Lois was hysterical the entire time. We decided we would drive separately to the hospital. Elliott was in surgery when we got there. I took Lois and then Quincy and Terry drove in another car.

See: Can you tell me about Elliott’s injuries?

Corrdy: They had to put him in a medically induced coma for nearly three weeks. He didn’t come out of it until March. He broke one leg, smashed his entire arm, had some broken ribs. They say he’s still recovering from the brain trauma.

See: And he will need ongoing medical care?

Corddry: Yeah, Terry and Quincy said the doctors said maybe for the rest of his life.

See: I’m so sorry to hear this, Jose. It sounds like you are really close to Elliott.

Corddry: The closest. I mean, Terry and Quincy always jokingly call me “Dad” when I’m telling them things about Elliott. Like a few months ago, he was getting stomach aches, and I thought he might be lactose intolerant. It turns out it was just stress. But like, if I would remind them to pick up the vegan cheese at the grocery

Corddry Interview Page 7 of 9

store or request it with takeout for Elliott, they would just laugh and say, “Ok, Dad.” Or like when I take them to a doctor’s appointment or go to a parent-teacher conference—when Terry and Quincy can’t go—I always take notes. And then I email my notes to Quincy and Terry, so they can know everything that’s going on, you know. They call it the “Dad Report.” I send them “Dad Reports” on the kids’ soccer games too, usually just photos if one of them scores a goal or does something really cute. It’s funny. I guess you have to be there.

See: It really sounds like you are all one big family.

Corddry: We are. I’m not really old enough to be their dad. I mean, technically, I guess I am, but not really. But I feel like one. I’m definitely more than a big brother or uncle to them. I’ve taken care of the twins since they were 10 days old. I changed their diapers and fed them in the middle of the night. I took them to their first day of preschool and kindergarten—with Quincy and Terry. I’ve been there for every birthday, every holiday. I take my own vacation in the summer, but I also take the family vacations with them too. And Quincy and Terry work a lot—that’s why I live there. I can take care of the kids. And it’s just me and the kids, the three of us, a whole lot of the time.

See: You’ve made a lot of great memories.

Corddry: Oh yeah. And now--, now. [Audible crying]

See: It’s ok. Take your time.

Corddry: Now, I don’t know what’s going to happen? I mean, is Elliott going to get out of the hospital? Is he going to go back to school? He loves school. He’s in the drama club and just got cast as Hamlet this semester. The lead! Is he going to get to do that ever?

See: That’s a lot to deal with.

Corddry: Yeah.

See: I understand all of this has taken a toll on your health, too.

Corddry Interview Page 8 of 9

Corddry: Yeah, I mean, it doesn’t compare to what Elliott is

going through, but yeah, it’s been hard on all of us. No one is sleeping. I can’t work, and I feel terrible about that because I want to be there for Lois and to help Terry and Quincy at home.

See: Can you tell me about that? I understand that you’ve been seeing a doctor?

Corddry: Yeah, I have a letter from her that I can email you.

See: Thank you. We can keep a copy in our records.

Corddry: And I went to the ER a few days after I got back to New York.

See: Tell me about that.

Corddry: I had been feeling bad for days. I couldn’t sleep, felt dizzy every time I would get up. I got this crazy rash all over my head and arms and back. And just when I thought it might be going away, it would look worse. I also have psoriasis. Do you know what that is?

See: Maybe you should tell me.

Corddry: It’s a skin disease that gives you ugly red and itchy patches all over. For me, it’s on my arm and scalp and back. It comes and goes. You’d be able to see it now through the screen if I didn’t have long-sleeves on.

See: That must be upsetting.

Corddry: Yeah, and I can’t do work of any kind. When I have time off from the family, I do a few gigs here and there.

See: What kind of gigs?

Corddry: It’s really no big deal, but I do a little bit of modeling. A friend got me into it a few years ago. There’s this kinda new athleisure company, Hill City. And I do some photo shoots for their catalogs and mailers and whatnots.

See: And you said you were unable to do any kind of work right now?

Corddry Interview Page 9 of 9

Corddry: Yeah, it’s in that doctor’s letter. But even if I felt

ok, like I was ok to take care of the kids, I couldn’t do the modeling work with this rash. And what’s worse, you can probably tell the left side of my face isn’t right. I have this paralysis thing, Bell’s palsy. It’s supposed to go away, but it’s been a couple weeks now.

See: I’m sure that’s very stressful.

Corddry: Yep, and that’s not what I need right now.

See: Can we go back to the ER visit? What can you tell me about that?

Corddry: That was probably when I was feeling my worst. My face was drooping more than it is now. I couldn’t even pronounce certain words—I felt like I was slurring. And then I felt like I couldn’t breathe. I thought I was having a heart attack or a stroke. My girlfriend googled it. You know, the paralysis can mean a stroke. So she took me to the ER.

See: And was it a stroke?

Corddry: No, thankfully. Probably just a panic attack. But the doctors said I’m at high risk for stroke and need to lower my stress level. I’ve started meditation. Not sure if it’s helping yet.

See: I hope it does. I know it’s not easy talking about all this. But it’s helpful to us, to our case. Let’s take a break for today, and we’ll follow up soon on the next steps. You take care, ok?

Corddry: Sure thing. Just let me know what else you need from me. Thanks.

June 30, 2020 Jose Corddry 650 10th Ave New York, NY 10036

To whom it may concern: This letter summarizes the medical symptoms and conditions presented by Jose Corddry and the resulting treatments I have provided to support my recommendation that Mr. Corddry be excused from all work and strenuous activities, for at least the next three months, and until his condition improves. I have been Mr. Corddry’s primary care physician since 2014. In general terms, I would describe him as a healthy, 31-year-old, active, African-American male. As his physician for the last six years, I have seen Mr. Corddry for his annual well visits and when he sought treatment for bronchitis and respiratory infections on two occasions in 2017 and 2018. Since late February, I have been treating Mr. Corddry for medical symptoms and conditions that appear to be the result of him witnessing a traumatic incident on February 15, 2020 involving a child in his care. On February 26, 2020, Mr. Corddry visited my office seeking relief for physical symptoms that included brief episodes of dizziness; double vision; an outbreak of blisters (vesicles) on his scalp, arms, and lower back; and facial paralysis. Mr. Corddry also displayed symptoms of anxiety and depression, including appearing withdrawn with a constricted affect. Finally, Mr. Corddry’s blood pressure was significantly elevated. My notes from this office visit are attached to this letter. On this initial visit, Mr. Corddry described that in the preceding week, he had suffered varying degrees of facial weakness and paralysis on the right side of his face, where he found it difficult to make facial expressions and enunciate certain words. On February 21 and into February 22, he felt stiffness and swelling on the left side of his face and what he called a sudden drooping of his cheek and chin, along with an inability to focus his eyes, resulting in double vision, and feeling dizzy and disoriented. He visited the emergency

Central Park West Medical Associates 561 Columbus Ave, New York, NY 10024

room immediately after noticing these symptoms, fearing that he suffered a stroke, on February 22, 2020, and was diagnosed with acute peripheral facial palsy of unknown cause, also known as Bell’s palsy. I concur with this diagnosis. The emergency room performed an EMG (electromyography) test and an MRI. Both came back normal. The symptoms of Bell's palsy include sudden weakness in your facial muscles, the result of swelling and inflammation of the nerve that controls the muscles on one side of the face. Bell's palsy is not considered a permanent disorder, but in rare cases, it does not disappear. Currently, there is no known cure for Bell's palsy; however, recovery usually begins 2 weeks to 6 months from the onset of the symptoms. Most people with Bell's palsy recover full facial strength and expression. Because Bell's palsy affects a single nerve, the facial nerve, its symptoms mimic those of a stroke. Mr. Corddry also presented a rash of blisters on his scalp, left upper arm and elbow, and lower back. He thought it was a psoriasis recurrence and explained he had not had a flare up of the condition for at least 10 years. I concurred with his opinion. In my experience, flare ups of this kind cause significant discomfort and are a result of stress, but they are not serious. I prescribed painkillers and Corticosteroids to Mr. Corddry and urged him to make diet and lifestyle choices that would lower his blood pressure, including abstaining from alcohol. And I encouraged him to seek therapeutic treatment for his anxiety and depression, conditions which are known to substantially raise the risk of a stroke. I informed Mr. Corddry that his race, high-blood pressure, and use of alcohol are recognized stroke risk factors; I also noted that he lacks other risk factors because he is younger than 55, isn’t diabetic or overweight, doesn’t smoke cigarettes, and has no history of heart disease. Since the initial in-office visit, Mr. Corddry has had four follow-up telehealth visits via Zoom, on March 18, 20020; April 23, 2020; and May 21, 2020; and June 29, 2020. We could not meet in person due to the Covid-19 outbreak. In each of these visits, Mr. Corddry explained that his anxiety, depression, facial paralysis, and psoriasis continue. Although I could not physically see him, I was able to observe in these virtual visits that psychological and mild physical symptoms of the conditions I initially diagnosed in Mr. Corddry persisted.

The medical literature and my experience support the conclusion that Bell’s palsy and psoriasis flare ups may sometimes be brought on by extreme stress or emotional trauma. Until Mr. Corddry recovers from this trauma such that his physical and psychological symptoms subside, it is not safe or advisable for him to work.

Sincerely,

Sigrid Nunez Sigrid Nunez, M.D.

Patient name (last, first, middle)

Corddry, Jose

Birth date

9/22/89

Visit date

2/26/20

Patient address 650 10th Ave New York, NY 10036

County

New York Surgery date

Physician

Nunez

Specialty

PCP

Date of report

2/26/20

Next appointment

as needed

Diagnosis

Diagnosed with Bell’s palsy at Mount Sinai ER/increasing degree of facial

paralysis/ongoing symptoms/no permanent damage

Moderate psoriasis flare-up with moderate pain

Patient appears severely depressed with considerable anxiety

Report (Please include clinical findings, prognosis, treatment, recommendation, plan, and follow-up instructions.)

10 mg/day prednisone

325 mg/day aspirin to reduce stroke risk

Ibuprofen/as needed

Counseling for anxiety and depression

Diet and lifestyle changes to address HBP—no alcohol

No work or strenuous activity for three months

Medical Report

Central Park West Medical Associates 561 Columbus Ave, New York, NY 10024

/

Ten-year-old nearly loses arm in airboat accident

Adam Fisher, Naples Daily News Published 3:00 p.m. ET Feb. 16, 2020

A New York boy is in critical condition after an airboat accident in the Everglades. The incident happened around 1 p.m. Saturday, when the child slipped out of the airboat and into alligator-infested waters, according to authorities.

Collier County Sheriff's Deputy Sandy Jenkins said that storms contributed to the accident involving the boat, owned by Thriller Airboat Rides. She said the child, a sibling, and their caregiver were aboard the airboat on a private tour, along with two Thriller employees. No one else was injured.

It's unclear how the child fell into the water, said Joe Kincaid, who captains the boat. He credited the quick action of his co-captain, Mitch Kinhagee, for saving the child's life. "Things happen real quick out here. You can lose an arm, just like that. I've lost one finger in these waters."

According to authorities, the child was injured when he came into contact with the airboat propeller. Jenkins did not know how long the boy was in the water but said she did not believe he was injured by alligators. He was airlifted to Jackson Memorial Hospital in Miami.

The names of the child and his companions were not released, and the investigation continues. Airboat accidents are rare, according to Florida Fish and Wildlife Conservation Commission statistics. In 2019, 31 of the state's 714 accidents involved an airboat.

PREVIOUS COVERAGE: Everglades Airboat Accidents (http://www.naplesnews.com/localnews/airboataccidents-everglades/)

(Photo: Courtesy Thriller Airboat Rides)

fNew York boy recovering in a Miami-area hospital after possibly losing part of arm in an airboat accident. (Photo: Samantha Bright)

7/16/2020 Detail by Entity Name

search.sunbiz.org/Inquiry/CorporationSearch/SearchResultDetail?inquirytype=EntityName&directionType=ForwardList&searchNameOrder=AIRBOAT…

Detail by Entity NameFlorida Profit CorporationTHRILLER AIRBOAT RIDES, INC.

P1800004501783-760438205/17/201805/17/2018FLACTIVE

Filing Information Document Number FEI/EIN Number Date FiledEffective DateStateStatusPrincipal Address

961 S. EASY STREET BIG BIG CYPRESS, FL 34141

Mailing Address

961 S. EASY STREET BIG CYPRESS, FL 34141

Registered Agent Name & Address

MARTIGIAN, DOMINIC

961 S. EASY STREET BIG CYPRESS, FL 34141

Name Changed: 04/25/2019

Address Changed: 04/25/2019

Officer/Director Detail

Name & Address

Title P,D

MITCHELL, MONIQUE961 S. EASY STREET BIG CYPRESS, FL 34141

Filed Date04/25/202004/23/2019

Annual Reports Report Year 20202019

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665 So.2d 1048Supreme Court of Florida.

Samuel ZELL, etc., et al., Petitioners,v.

Gaylynn Sue MEEK andBarry M. Meek, Respondents.

No. 83806.|

Oct. 5, 1995.|

Rehearing Denied Jan. 3, 1996.

SynopsisDaughter of apartment tenant who had witnessed tenant'sdeath after bomb placed in apartment doorway by anonymousbomber exploded brought action for negligent infliction ofemotional distress against owner of apartment complex, andowner moved for summary judgment. The Circuit Court,Duval County, Frederick Tygart, J., granted motion, and

daughter appealed. The District Court of Appeal, 636So.2d 105, reversed and remanded and certified question.The Supreme Court, Anstead, J., held that: (1) temporalproximity between psychic injury and causally connectedphysical impairment is not absolute inflexible requirement forrecovery for negligent infliction of emotional distress, but ismerely relevant factor to be considered; (2) factual questionof requisite causation between psychic injury and physicalinjury is to be decided on case-by-case basis; and (3) factissue as to whether causal connection existed in instant caseprecluded summary judgment.

Certified question answered in affirmative in part and innegative in part, decision of District Court of Appealapproved, and remanded.

Procedural Posture(s): On Appeal; Motion for SummaryJudgment.

West Headnotes (3)

[1] Damages Physical Illness, Impact, orInjury;  Zone of Danger

Temporal proximity between psychic injury andcausally connected physical impairment is notabsolute inflexible requirement for recovery fornegligent infliction of emotional distress; rather,temporal proximity should be utilized simply asrelevant factor to be considered in factfinder'sdetermination of whether person has sustainedphysical injury as result of psychic trauma.

50 Cases that cite this headnote

[2] Damages Negligent Infliction ofEmotional Distress

To allege cause of action for negligent inflictionof emotional distress, plaintiff must sufferphysical injury, physical injury must be causedby psychological trauma, plaintiff must beinvolved in some way in event causing negligentinjury to another, and plaintiff must have closepersonal relationship to directly injured person;factual question of causation of physical injury isto be decided on case-by-case basis.

47 Cases that cite this headnote

[3] Judgment Torts

Fact issue as to whether causal connectionexisted between psychic injury caused whendaughter of apartment tenant witnessed tenant'sdeath after explosion of bomb placed indoorway of apartment and daughter's physicalinjuries, precluding summary judgment in actionbrought by daughter against apartment ownerfor negligent infliction of emotional distress,was presented by evidence that manifestations ofpsychic injury began immediately and continuedin progressive pattern of exacerbation beforerising to level of physical impairment within ninemonths, and by expert testimony that psychicinjury contributed to daughter's physical injuries.

17 Cases that cite this headnote

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Attorneys and Law Firms

*1048 Jack W. Shaw, Jr. and Michael J. Obringerof Osborne, McNatt, Shaw, O'Hara, Brown & Obringer,Jacksonville, for petitioners.

Christopher C. Hazelip and Clinton A. Wright, III of Rogers,Towers, Bailey, Jones & Gay, Jacksonville, for respondents.

Sharon Lee Stedman of Sharon Lee Stedman, P.A., Orlando,Amicus Curiae for Florida Defense Lawyers Association.

Arnold R. Ginsberg of Perse, P.A. & Ginsberg, P.A., Miami,Amicus Curiae for Academy of Florida Trial Lawyers.

Opinion

ANSTEAD, Justice.

Gaylynn Sue Meek (Meek) and her husband Barry M.Meek sought review in the district court of a summary finaljudgment entered against them on their claim for negligentinfliction of emotional distress. The district court reversed andcertified the following *1049 question as one of great publicimportance:

IS THE INTERVAL OF TIMEBETWEEN A PSYCHIC TRAUMAAND THE MANIFESTATION OFPHYSICAL TRAUMA MERELYONE ISSUE FOR THE TRIEROF FACT'S CONSIDERATIONIN DECIDING WHETHER THECAUSE OF ACTION RECOGNIZED

IN CHAMPION V. GRAY[478 So.2d 17 (Fla.1985) ]HAS BEEN ESTABLISHED [partI]; OR IS THERE SOMEARBITRARY PERIOD AFTERWHICH THE MANIFESTATION OFPHYSICAL IMPAIRMENT WILLBE CONCLUSIVELY PRESUMEDNOT TO HAVE BEEN CAUSED BYTHE PSYCHIC TRAUMA [part II]?

Meek v. Zell, 636 So.2d 105, 108 (Fla. 1st DCA 1994). Wehave jurisdiction. Art. V, § 3(b)(4), Fla. Const. We approve thedecision of the district court and answer part I of the certifiedquestion in the affirmative, but qualify our answer by holdingthat the interval of time between the psychic trauma and thephysical manifestation is one factor in proving causation. Weanswer part II of the certified question in the negative andhold that the factual question of causation is to be decided ona case-by-case basis.

FACTS

The facts underlying the Meeks' claim are set out in thedistrict court opinion. Their claim is based on injuriesallegedly sustained by Gaylynn Meek after she witnessedher father's death at the hands of an anonymous bomber atthe father's apartment. The Meeks sued Samuel Zell (ownerof the apartment complex) and First Property (apartmentmanagement company) alleging that they were negligent infailing to take reasonable steps to protect their tenants andinvitees, including Meek's father, from foreseeable criminalconduct. The Meeks' complaint alleged a cause of action fornegligent infliction of emotional distress.

It is undisputed that Zell and First Property received bombthreats prior to the bombing but did not warn their tenantsor invitees, or otherwise take any reasonable steps to providefor their safety and security against the threats. Following anovernight boating trip, Meek and her parents returned to thelatter's apartment home. Upon entering, they noticed a smallbox on their doorstep. Meek and her mother stepped overthe box and into the kitchen, leaving Meek's father behind.Immediately thereafter, a tremendous explosion rocked theentire apartment. The force of the explosion shatteredwindows and light fixtures and blew a smoke detector andthermostat from the wall. A glass light fixture suspended fromthe kitchen ceiling shattered and the debris fell on Meek andher mother. Meek screamed and then made her way throughthe smoke to the front door where she saw her father, who layscorched, mutilated, and dying.

Meek did not suffer any significant physical injuries as adirect result of the smoke or shattered pieces of glass that fellon her. However, immediately after witnessing her father's

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death, Meek began having insomnia (for which she tookprescribed medication), coupled with depression (for whichshe continues to take prescribed medication), short-termmemory losses, an extreme fear of loud noises, bad dreams,and an inability to stop reliving the event. Within three weeksof the bombing, she began psychological treatment whichcontinued intermittently for a period of two years with threedifferent psychologists. Meek's sexual relationship with herhusband also suffered during this time.

Approximately nine months after the bombing, Meek beganexperiencing physical impairment in the upper area of herstomach. Thereafter, the pain below her rib cage becameworse and she became very ill, with pain spreading into herchest area. This pain was eased somewhat with prescriptionulcer medication. Eventually, Meek experienced a blockagein her esophagus, was unable to swallow, and had difficultyin breathing. Meek also developed joint pain in her hipsand elbows, which she treats with Ibuprofen. Meek's treatingphysician expressed the following opinion regarding hercondition:

I have treated [Meek] for anxietywith depressed mood, orodentaldysphagia [esophageal contractions],fibromyalgia [pain in *1050 hipand elbow joints], dyspepsia [stomachpains] and irritable bowel symptoms.In my medical opinion, within areasonable degree of probability, thepsychological trauma she suffered asa result of her father's death hascontributed to her physical symptomsand increased [her] need for medicalcare. Additionally, in my medicalopinion, within a reasonable degreeof probability, she has suffered frominsomnia and anxiety with depressedmood, with situational depressionsecondary to her father's death.

On this record, the district court held that under Championv. Gray, 478 So.2d 17 (Fla.1985), the Meeks had produced

sufficient evidence to entitle them to a trial on their claim fornegligent infliction of emotional distress.

LAW AND ANALYSIS

In Champion v. Gray, 478 So.2d 17 (Fla.1985), we heldthat persons who suffer a physical injury as a result ofemotional distress arising from their witnessing the death orinjury of a loved one may maintain a cause of action fornegligent infliction of emotional distress. Prior to Champion,Florida adhered strictly to a requirement that some physicalimpact to a claimant must be alleged and demonstrated beforethe claimant could recover damages for personal injury. This

rule is referred to as “the impact rule.” Gilliam v. Stewart,

291 So.2d 593, 595 (Fla.1974); Crane v. Loftin, 70 So.2d

574, 575 (Fla.1954). 1

GILLIAM V. STEWART

The impact rule has not been without its critics and has been

abolished in most jurisdictions. 2 In 1972, the Fourth District,believing that the impact rule was “at variance with modern-day needs and with concepts of justice and fair dealing,” heldthat a plaintiff may recover for the demonstrable physicalconsequences of a mental or emotional disturbance caused bythe negligent act of another, even in the absence of an actual

physical impact to the claimant. Stewart v. Gilliam, 271

So.2d 466, 472 (Fla. 4th DCA 1972), quashed, 291 So.2d593 (Fla.1974). To support its decision, the court discussedand rejected the “three basic arguments which have served asthe underlying reasons for adhering to the impact doctrine”:(1) the difficulty in proving causation between the claimeddamages and the alleged fright or shock; (2) the fear offraudulent or exaggerated claims; and (3) the possible *1051

flood of litigation. Id. 3

In Stewart, the plaintiffs sued two drivers for negligentlyoperating their motor vehicles so as to collide with eachother, and then to collide with the plaintiffs' house where JaneStewart was in bed, but not asleep. The complaint alleged thatJane Stewart suffered “shock to her nervous system which

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resulted in a coronary insufficiency and myocardial infarctionand a left lateral cerebellar lesion.” Id. at 467. The FourthDistrict held that these allegations were sufficient to statea claim despite the absence of any physical impact to Mrs.Stewart.

On review, however, we quashed the Fourth District'sdecision and reaffirmed the validity of the “impact rule,”finding that there was no “valid justification to recede fromthe long standing decisions of this Court in this area.”

Gilliam v. Stewart, 291 So.2d 593, 595 (Fla.1974). Wecited with approval the dissenting opinion authored by JudgeReed in the district court which opined that “[t]he impactdoctrine gives practical recognition to the thought that notevery injury which one person may by his negligence inflictupon another should be compensated in money damages.”

Stewart, 271 So.2d at 477.

CHAMPION

In Champion, we reconsidered our holding in Gilliam andour continuing strict adherence to the impact rule. WalterChampion, as personal representative of his wife's estate,brought an action for damages against a drunk driver whosenegligence caused Mrs. Champion's death. The complaintalleged that a drunk driver ran his car off the road, strikingand killing Karen Champion, the daughter of Walter andJoyce Champion. Karen's mother heard the impact, cameimmediately to the accident scene, and, upon seeing herdaughter's body was so overcome with shock and grief that

she collapsed and died on the spot. 478 So.2d at 18.Considering these compelling facts, we concluded:

[T]he price of death or significantdiscernible physical injury, whencaused by psychological traumaresulting from a negligent injuryimposed upon a close family memberwithin the sensory perception of thephysically injured person, is too great*1052 a harm to require direct

physical contact [“impact”] before acause of action exists.

Id. at 18–19.

Accordingly, in Champion, we retreated from our strictadherence to the impact rule and recognized for the first timea negligence action for physical injuries occurring without anactual impact:

We hold that a claim exists fordamages flowing from a significantdiscernible physical injury whensuch injury is caused by psychictrauma resulting from negligent injuryimposed on another who, because ofhis relationship to the injured party andhis involvement in the event causingthat injury, is foreseeably injured.

Id. at 20. At the same time that we recognized a claim forphysical injuries caused by emotional distress, we refused torecognize a claim for psychic harm alone:

The pure foreseeability test, espousedby some, might lead to claims that weare unwilling to embrace in emotionaltrauma cases. We perceive that thepublic policy of this state is tocompensate for physical injuries, withattendant lost wages, and physicaland mental suffering which flow fromthe consequences of the physicalinjuries. For this purpose we arewilling to modify the impact rule,but are unwilling to expand it topurely subjective and speculativedamages for psychic trauma alone.We recognize that any limitation issomewhat arbitrary, but in our viewis necessary to curb the potential offraudulent claims, and to place some

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boundaries on the indefinable andunmeasurable psychic claims.

Id. (emphasis added). In summary, we rejected the impactrule to the extent that we held that no impact need be shownwhere psychological trauma could be demonstrated to causea demonstrable physical injury, but we retained the rule as

a bar to psychic injuries resulting from such trauma. 4 Ofcourse, in addition to the requirement of a physical injury,we limited the class of claimants to those “who, because of[their] relationship to the [directly] injured party and [their]involvement in the event causing that injury, [are] foreseeably

injured.” Id. at 20. 5

Justice Alderman, in his concurring opinion in Champion,explained that the full contours of the newly recognized causeof action would be shaped by the common law practice ofconsidering each case on its merits:

We today modify to a limited extentour previous holdings on the impactdoctrine. In doing so, however, we areunable to establish a rigid hard andfast rule that would set the parametersfor recovery for psychic trauma inevery case that may arise. The outerlimits of this cause of action willbe established by the courts of thisstate in the traditional manner of thecommon law on a case-by-case basis.Space, time, distance, the nature of theinjuries sustained, and the relationshipof the plaintiff to the victim ofthe accident must all be considered.We have listed several relationshipswhich may qualify. These, however,are not exclusive; other relationshipsmay qualify. Each one will be closelyscrutinized on a case-by-case basis.The closer the tie in relationshipor emotional attachment, the greaterthe claim for consideration will be.The requirement that the physicallyinjured person be directly involved in

the event causing the original injurymust *1053 also be scrutinized ona case-by-case basis. Proximity tothe accident in time and space doesnot necessarily mean only direct andimmediate sight or hearing at thescene of the accident. Rather, theremay be recovery in instances wherethere is a direct perception of someof the events making up the entireaccident, including the immediateaftermath of the accident. This wouldinclude but not be limited to thefactual situation found in McLoughlin[v. O'Brian, [1982] 2 All E.R. 298(Eng.H.L.1982) ].

Id. at 21–22. This case and two other recent opinions by thisCourt confirm the accuracy of Justice Alderman's analysis

and forecast. 6

THE “SHORT TIME” REQUIREMENT

[1] [2] The statement in the majority opinion in Championthat is the focus of the certified question in this case provides:

We emphasize the requirement that acausally connected clearly discerniblephysical impairment must accompanyor occur within a short time of thepsychic injury.

Id. at 19 (emphasis added). The district court concluded thatthis statement was dicta since we did not include a temporallimitation in our summary statement of the holding of thecase. While the district court may be correct, we acknowledgethat our statement in Champion appears to impose astrict “short time” limitation on the action we approvedtherein. Today we recede from the statement in Championthat imposed a rigid temporal proximity requirement. Onreflection, we believe that temporal proximity, as opposed tobeing an absolute inflexible requirement, should be utilized

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simply as a relevant factor to be considered in a factfinder'sdetermination of whether a person has sustained a physical

injury as a result of a psychic trauma. 7

The essence of our holding in Champion was to recognize aclaim where an actual physical injury could be demonstratedto be caused by psychic trauma. Temporal proximity willusually be an important factor for the judge or jury to considerin resolving the factual question of causation. Its importancewill vary depending on the facts of each case. Obviously,for example, the shorter the interval of time between thepsychic impact and the physical injury the more weight thisfactor may be given. That was the situation in Champion.However, there are other factors pertinent to the causationinquiry. For example, the nature and severity of the injuryand the nature of the evidence also help to confirm or rebutthe causal connection between the psychic injury and thephysical injury. However, the important question is whetherthe psychic impact caused the physical injury, whether thatinjury be manifest immediately, or days, weeks, or monthslater. Just as a physical bruise or injury may ultimatelyresult in a more serious condition not initially apparent, somay the effects of psychic trauma cause a serious physicalimpairment. Of course, in both instances a claimant has theburden of proving causation.

The alternative to establishing causation through theapplication of various relevant factors is to announce atime period beyond which claims for negligent infliction ofemotional distress are barred. However, we believe such arule would be wholly arbitrary and, as a practical matter,unworkable. For *1054 instance, initially, we would befaced with defining the “short time” requirement. Would wedefine it in terms of hours, days, weeks, months, years?Obviously, any fixed limitation would cut off claims that,although possibly valid, involved physical consequenceswhich became manifest after the chosen cutoff date.

Further, we have no rational basis upon which to determinesuch a limitation. Of course, we could fall back upon a“reasonable” period of time. But that, too, would needdefinition and would inevitably invite inconsistent results.

We think the fairer and more rational approach is to allowthe time interval to be considered as part of the causationissue. Such a rule has long served us in ordinary “impact”

cases, and we believe it to be the better rule here. Whilefraud and the difficulty in evaluating psychic claims maycontinue to trouble the court system, an arbitrary cutoff fornegligent infliction of emotional distress claims would haveno remedial purpose except to reduce the number of claims.In fact, establishing an arbitrary cutoff for claims wouldcontravene general public policy by denying persons with

meritorious claims access to the courts. 8

We reaffirm our qualification of the foreseeability test andrestate, consistent with Champion, the elements required toallege a cause of action for negligent infliction of emotionaldistress: (1) the plaintiff must suffer a physical injury; (2) theplaintiff's physical injury must be caused by the psychologicaltrauma; (3) the plaintiff must be involved in some way inthe event causing the negligent injury to another; and (4) theplaintiff must have a close personal relationship to the directlyinjured person.

THIS CASE

[3] We agree with the district court's finding that there is “aclear and definitive basis for a jury or fact-finder to concludethat there is a causal connection between the psychic injury

and the physical injury” in this case. Meek, 636 So.2d at108. In the opinion below, the district court reasoned:

The manifestations of Meek'spsychic injury began immediatelywith insomnia, depression, short-term memory losses, extreme fear ofloud noises, bad dreams, and similaroccurrences, resulting in professionaltreatment within three weeks ofthe bombing. They continued in aprogressive pattern of exacerbationbefore rising to the level of physicalimpairment within nine months afterthe bombing. Thereafter, the resultingphysical injuries continued to becomemore and more serious. The opinionof Meek's treating physician furtherstrengthened her position that herclaim of a causal connection is easily

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measured and defined, with little orno chance of malingering or otherfraudulent conduct.

Id. As the district court's reasoning indicates, the natureof Mrs. Meek's injuries and the uncontroverted medicaltestimony also suggest a causal link between the psychictrauma and the physical manifestations. In short, we findsome evidence in the record which indicates that the Meeksmay be able to establish all the elements of the Championtest for a cause of action for negligent infliction of emotionaldistress. Accordingly, it was error to enter summary judgmenton their claim.

CONCLUSION

In conclusion, we approve the decision of the district court.We answer part I of the certified question in the affirmative

but qualify our answer by holding that the interval of timebetween the psychic trauma and the physical manifestationis one factor in proving causation. Consequently, we alsorecede from any language in Champion which made temporalproximity of the physical injury a requirement to allege acause of action for negligent infliction of emotional distress.We answer part II of the certified question in the negative andhold that the factual question of causation is to be decided ona case-by-case basis.

*1055 We remand for proceedings consistent herewith.

It is so ordered.

GRIMES, C.J., and OVERTON, SHAW, KOGAN,HARDING and WELLS, JJ., concur.

All Citations

665 So.2d 1048, 20 Fla. L. Weekly S515

Footnotes

1 However, to suffer an impact, a plaintiff may meet rather slight requirements, such as those described by the

Third District in Eagle–Picher Industries, Inc. v. Cox, 481 So.2d 517 (Fla. 3d DCA 1985), review denied,492 So.2d 1331 (Fla.1986):

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 theplaintiff's body.

Id. at 527. In Eagle–Picher, the court determined that the inhalation of asbestos fibers, which over time causesserious lung damage, constituted an impact. Id. at 526. This formulation is consistent with our own holdings.See, e.g., Clark v. Choctawhatchee Elec. Coop., 107 So.2d 609, 612 (Fla.1958). We said, for example, that“an electrical shock, or trauma, or impact, may be administered and not leave an outward sign.” Id. In Clark,we held that an electric shock which caused the plaintiff's tongue to thicken, her legs to ache, then buckle,and then caused plaintiff to fall, constituted an impact even though there were no outward signs of traumasuch as burns, bruises or scars. Id.In numerous cases, however, the courts have found that the impact rule was not satisfied because, although

there may have been some “touching,” it did not rise to the level of impact. See, e.g., R.J. v. Humanaof Florida, Inc., 652 So.2d 360, 364 (Fla.1995) (finding that although “touching of patient by a doctor andthe taking of blood for ordinary testing would not qualify for a physical impact, other more invasive medicaltreatment or the prescribing of drugs with toxic or adverse side effects would so qualify”).

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In another case the court found no impact when the plaintiff, who was on the ground in the vicinity of a planecrash, felt a mild change in the temperature and air pressure when the plane hit the ground. See Ellingtonv. United States, 404 F.Supp. 1165, 1166, 1167 (M.D.Fla.1975); see also Davis v. Sun First Nat'l Bank ofOrlando, 408 So.2d 608, 609–10 (Fla. 5th DCA 1981) (holding bank teller had no cause of action againsther employer for failing to take reasonable security measures when only impact alleged was bank robber'shanding of holdup note to teller), review denied, 413 So.2d 875 (Fla.1982).

2 Gonzalez v. Metro. Dade County Pub. Health Trust, 651 So.2d 673, 674 n. 1 (Fla.1995) (noting that morethan 30 jurisdictions have abrogated the impact rule).

3 As to the first argument, proving causation, the court asserted:[T]he question of proving or disproving causation between the claimed injuries and damages and thealleged fright or shock may indeed have been a difficult undertaking in 1888 when the impact rule was firstannounced. Such is not the situation today. An extensive review of medical treatises is not necessary inorder to recognize that medical science has come a long way since the turn of the century; the changesbrought about by modern scientific techniques and the advancement made by modern medicine have beenoverwhelming. This is particularly true in the refinement of techniques for diagnosing the causal connectionbetween emotional states and physical injuries.....The question is not really one of “impact” but rather the causal connection between the negligent act andthe ultimate injury—a circumstance which in the last analysis does not seem to pose problems any moredifficult to solve in a non-impact case than in an impact case. Causation is not peculiar to cases withoutimpact; it is an ingredient in all types of personal injury litigation. The fact that there may be difficulty inproving or disproving a claim should not prevent a plaintiff from being given the opportunity of trying toconvince the trier of fact of the truth of the claim.

Id. at 472–73.With respect to the second argument concerning fraudulent or exaggerated claims, the court stated:

[S]uch an assertion would deny to a plaintiff the right to be heard—the opportunity to present the case to ajury—the chance to be compensated for an injury negligently incurred. Adherence to “impact” on this basisseems to say very little for our system of jurisprudence because it seemingly constitutes tacit admissionthat our system is incapable of weeding out fraudulent claims.... [T]he courts of this state have been ableto separate the genuine from the bogus claims and there is no reason to assume that this problem cannotbe properly dealt with in instances where there has been no impact.

Id. at 474.Finally, as to whether rejection of the impact rule would precipitate a flood of litigation, the opinion noted that:

In those states following the majority rule allowing recovery for psychic injuries without impact “the fearedflood tide of litigation has simply not appeared.” Nor has it been demonstrated that the amount of litigationin those states with no impact rule is greater than in those states with the impact rule.

Id. at 475 (citation omitted).4 On the same day we decided Champion, we decided Brown v. Cadillac Motor Car Division, 468 So.2d

903, 904 (Fla.1985), wherein we rejected a claim for psychic injuries resulting to a son who witnessed hismother's death, and held that “psychological trauma must cause a demonstrable physical injury such asdeath, paralysis, muscular impairment, or similar objectively discernible physical impairment.”

5 In fashioning this new action, we relied substantially on Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72,441 P.2d 912 (1968), and the foreseeability test the California Supreme Court adopted therein to define thebounds of liability in negligent infliction of emotional distress cases. This test takes into account numerous

factors to determine the degree of the defendant's foreseeability. See id. 69 Cal.Rptr. at 80–81, 441 P.2d

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at 920–21. These factors include: (1) the proximity of the plaintiff to the scene of the accident; (2) whetherthe shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneousobservance of the accident, as contrasted with learning of the accident from others after its occurrence; and(3) the nature of the relationship between the plaintiff and the victim. Id.

6 See R.J. v. Humana of Florida, Inc., 652 So.2d 360, 363 (Fla.1995) (citing Champion for the propositionthat “psychological trauma and mental distress are recoverable as elements of damage without direct physicalimpact in cases where a plaintiff was in the sensory perception of physical injuries negligently imposed

upon a close family member and where the plaintiff suffered a discernible physical injury”); Gonzalez v.Metro. Dade County Pub. Health Trust, 651 So.2d 673, 675 (Fla.1995) (recognizing that the impact ruleis not applicable in cases “where a person suffers a significant discernible physical injury caused by thepsychological trauma that results from observing the death or physical injury of a close family member thatwas negligently caused by another”).

7 In 1893, when we first recognized a cause of action for negligent infliction of emotional distress, we wereconcerned about the quality of proof of a claim for mental suffering. See International Ocean Telegraph Co. v.Saunders, 32 Fla. 434, 446–47, 14 So. 148, 151–52 (1893). We were primarily concerned about the difficultyin valuing mental anguish for damage purposes. Id. As a consequence, we required proof of a concomitantphysical injury as a safeguard. Id. We were concerned with the same problem when we modified the impactrule in Champion.

8 See supra note 3.

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652 So.2d 360Supreme Court of Florida.

R.J. and P.J., Petitioners,v.

HUMANA OF FLORIDA,INC., etc., et al., Respondents.

No. 82743.|

March 2, 1995.

SynopsisPatient who was misdiagnosed as having humanimmunodeficiency virus (HIV) brought action againstmedical facility, laboratory, and physician to whom patientwas referred, claiming that he suffered bodily injury includinghypertension, pain and suffering, mental anguish, loss ofcapacity for enjoyment of life, and reasonable expense ofmedical care and attention as result of such misdiagnosis. TheCircuit Court, Orange County, Emerson R. Thompson, Jr.,J., dismissed based on patient's failure to meet requirementsof impact rule. Patient appealed. The District Court of

Appeal, 625 So.2d 116, affirmed and certified question.The Supreme Court, Overton, J., held that: (1) impact rule,which essentially requires that, before plaintiff can recoverdamages for emotional distress caused by negligence ofanother, emotional distress suffered must flow from physicalinjuries plaintiff sustained in impact, remains law of Floridaand applies to claim for negligent HIV diagnosis; (2) allegedinjuries were insufficient to meet physical injury requirementunder rule; but (3) negligent misdiagnosis could result inunnecessary and harmful medical treatment that would satisfyphysical impact requirement if invasive medical treatment orprescription of drugs with toxic or adverse side effects wasinvolved.

Ordered accordingly.

Kogan, J., concurred specially with opinion.

Procedural Posture(s): On Appeal.

West Headnotes (5)

[1] Damages Physical Illness, Impact, orInjury;  Zone of Danger

“Impact rule,” which essentially requires thatbefore plaintiff can recover damages foremotional distress caused by negligence ofanother, emotional distress suffered must flowfrom physical injuries plaintiff sustained inimpact, remains the law of Florida.

75 Cases that cite this headnote

[2] Damages Physical Illness, Impact, orInjury;  Zone of Danger

Under tort of intentional infliction of emotionaldistress, damages for emotional distress arerecoverable even if no physical impact is present.

33 Cases that cite this headnote

[3] Damages Aids/Hiv

“Impact rule,” which essentially requires thatbefore plaintiff can recover damage foremotional distress caused by negligence ofanother, emotional distress suffered must flowfrom physical injuries plaintiff sustained inimpact, applies to claim for damages fromnegligent misdiagnosis of positive status forhuman immunodeficiency virus (HIV).

71 Cases that cite this headnote

[4] Damages Aids/Hiv

Patient's allegations that, as resultof misdiagnosis that he had humanimmunodeficiency virus (HIV), he sufferedbodily injury including hypertension, pain andsuffering, mental anguish, loss of capacity forenjoyment of life, and reasonable expense formedical care and attention did not meet physicalinjury requirement under impact rule necessaryto recover emotional distress damages.

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[5] Damages Aids/Hiv

Negligent misdiagnosis of patient's positivestatus for human immunodeficiency virus (HIV)could result in unnecessary and harmful medicaltreatment causing bodily injury that wouldsatisfy requirements of physical impact underimpact rule for recovery of emotional distressdamages; although touching of patient by doctorand taking of blood for ordinary testing wouldnot qualify as physical impact, other moreinvasive medical treatment or prescribing ofdrugs with toxic or adverse side effects would soqualify.

40 Cases that cite this headnote

Attorneys and Law Firms

*361 Marcia K. Lippincott of Marcia K. Lippincott, P.A.,and Roy B. Dalton, Jr. of Martinez & Dalton, P.A., Orlando,for petitioners.

Robert A. Hannah and Michael C. Tyson of Hannah, Marsee,Beik & Voght, P.A., Orlando, Alan C. Sundberg, Tallahassee,and A. Broaddus Livingston and Sylvia H. Walbolt of Carlton,Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, andShelley H. Leinicke of Wicker, Smith, Tutan, O'Hara, McCoy,Graham & Lane, P.A., Fort Lauderdale, for respondents.

Carl A. Cascio and Scott Mager of the Law Offices of ScottMager, P.A., Fort Lauderdale, amicus curiae, for Academy ofFla. Trial Lawyers.

Kimberly A. Ashby of Maguire, Boorhis & Wells, P.A.,Orlando, amicus curiae, for Fla. Defense Lawyers Ass'n.

Opinion

OVERTON, Justice.

This is a petition to review R.J. v. Humana, Inc., 625So.2d 116 (Fla. 5th DCA 1993), *362 in which the districtcourt affirmed the trial court's holding that there was no

physical impact sufficient to maintain a negligence action foran erroneous test showing that R.J. was HIV positive. In soholding, the district court certified the following question asone of great public importance:

DOES THE IMPACT RULE APPLYTO A CLAIM FOR DAMAGESFROM A NEGLIGENT HIVDIAGNOSIS?

Id. at 117. We have jurisdiction 1 and, for the reasonsexpressed, we answer the question in the affirmative, holdingthat damages for emotional harm as a result of a misdiagnosiscannot be recovered without a showing of some physicalinjury as a result of the misdiagnosis. Nevertheless, we findthat R.J. should be allowed to amend the complaint to allege acause of action consistent with the principles set forth in thisopinion.

R.J.'s complaint alleges that on March 19, 1989, agents ofHumana of Florida, Inc., d/b/a Humana Hospital–Lucerne(Humana), took blood from R.J.; that the blood was sent toSmithkline Beecham Clinical Laboratories, Inc. (Smithkline),for testing and analysis; that on March 30, 1989, Humanainformed R.J. that the results of the blood test indicatedthat he was HIV positive; that Humana referred R.J. to Dr.William Robbins for medical care and treatment; that R.J.was not retested until he requested a new test approximatelynineteen months later in November, 1990; and that thissecond test revealed that R.J. was not infected with the HIVvirus. On these allegations, R.J. asserted that, through thenegligence of Humana, Smithkline, and Dr. Robbins, he wasincorrectly led to believe that he had contracted the HIV virus,“causing him to suffer bodily injury including hypertension,pain and suffering, mental anguish, loss of capacity for theenjoyment of life, and the reasonable expense of medical careand attention.” The trial court dismissed the complaint withprejudice for failure to state a cause of action on the basis thatit failed to meet the requirements of the impact rule.

On appeal, the Fifth District Court affirmed, noting that thisCourt has relaxed the requirement of the impact rule in a fewlimited situations but that the circumstances of this case didnot fit into any of those excepted categories. The district court

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then certified the aforementioned question for a determinationof whether the impact rule should apply to a case of negligentHIV diagnosis.

R.J. challenges the lower court's decision on three alternativegrounds: (1) that the impact rule should be abolished; (2)that this Court should create an exception to the impact rulefor cases involving negligent HIV diagnoses; or (3) that, ifthe impact rule does apply, sufficient facts are alleged in thecomplaint to meet the requirements of the impact rule.

[1] The impact rule has had a long legal history in thisstate, beginning with this Court's decision in InternationalOcean Telegraph Co. v. Saunders, 32 Fla. 434, 14 So. 148(1893). In essence, the impact rule requires that “before aplaintiff can recover damages for emotional distress causedby the negligence of another, the emotional distress sufferedmust flow from physical injuries the plaintiff sustained in

an impact.” Reynolds v. State Farm Mut. Auto. Ins. Co.,611 So.2d 1294, 1296 (Fla. 4th DCA 1992), review denied,623 So.2d 494 (Fla.1993). As explained by one commentator,the underlying basis for the rule is that allowing recoveryfor injuries resulting from purely emotional distress wouldopen the floodgates for fictitious or speculative claims. 1Thomas M. Cooley, Cooley on Torts 97 (3d ed. 1906). Asthis Court stated in Saunders, compensatory damages foremotional distress are “spiritually intangible,” are beyond thelimits of judicial action, and should be dealt with throughlegislative action rather than judicial decisions. 32 Fla. at448, 14 So. at 152. Another commentator has stated that therequirement of a physical impact gives courts a guaranteethat an injury to a plaintiff is genuine. W. Page Keeton et al.,Prosser and Keeton on the Law of Torts § 54, at 363 (5thed. 1984). Further, without an impact requirement, defendantswould not be sure whom they had injured or where they mayhave injured a *363 person, thus paralyzing their ability todefend themselves. Id. at 364.

In recent years, we have continued to uphold the impact rule,finding that the underlying basis for the rule still exists andthat no new reason has been shown to justify overruling priordecisions of this Court regarding this issue. For instance, in

Gilliam v. Stewart, 291 So.2d 593 (Fla.1974), we foundthat an individual whose physical injuries were allegedly dueto physical fright suffered when an automobile struck herhouse could not recover for those injuries because she had

failed to show the requisite physical impact. Similarly, in

Brown v. Cadillac Motor Car Division, 468 So.2d 903(Fla.1985), we found that the driver of a defective automobilethat struck and killed the driver's mother had no cause ofaction for his mental distress because he sustained no physical

injury. And, in Doyle v. Pillsbury Co., 476 So.2d 1271(Fla.1985), we held that impact in the form of ingestionof food must occur before one can recover for emotionaldamages as a result of finding an insect in food.

[2] This does not mean that emotional injuries are neverrecoverable when a physical impact is not present. We havecreated limited exceptions. We expressly recognized the tortof intentional infliction of emotional distress under whichemotional distress is recoverable even if no physical impact is

present. See Eastern Airlines, Inc. v. King, 557 So.2d 574

(Fla.1990); Metropolitan Life Ins. Co. v. McCarson, 467So.2d 277 (Fla.1985). In Eastern Airlines, we explained theapplication of a claim for intentional infliction of emotionaldistress, noting that an intentional infliction claim is onlyviable when the conduct causing the emotional distress is

outrageous. 2 As Justice Ehrlich noted in his concurringopinion in Eastern Airlines, however, the impact rule has

remained a part of the law of this state. 557 So.2d at 579

(Ehrlich, C.J., concurring). Additionally, in Champion v.Gray, 478 So.2d 17 (Fla.1985), we held that psychologicaltrauma and mental distress are recoverable as elements ofdamage without direct physical impact in cases where aplaintiff was in the sensory perception of physical injuriesnegligently imposed upon a close family member and wherethe plaintiff suffered a discernible physical injury. More

recently, in Kush v. Lloyd, 616 So.2d 415, 422 (Fla.1992),we held that the impact rule should not be applied toactions for wrongful birth where emotional damages are the “‘parasitic’ consequence of conduct that itself is a freestandingtort.” In carving these exceptions to the impact rule inboth Champion and Kush, we nevertheless reaffirmed theappropriateness of the impact rule in most circumstances andcarefully restricted the exceptions.

[3] We reaffirm today our conclusion that the impact rulecontinues to serve its purpose of assuring the validity ofclaims for emotional or psychic damages, and find that the

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impact rule should remain part of the law of this state.Consequently, we reject R.J.'s request that we abolish theimpact rule. We also reject R.J.'s argument that, as a matter ofpublic policy, this Court should create a limited exception tothe impact rule for a negligent HIV diagnosis.

Without question, allowing compensation for emotionaldistress in the absence of a physical injury under thecircumstances of this case would have a substantial impacton *364 many aspects of medical care, including the costof providing that care to the public. Were we to create suchan exception, we would, of necessity, also be allowing aclaim for emotional distress for any misdiagnosis made fromnegligent medical testing. We could not limit an exceptionfor negligent misdiagnosis to cases specifically involving theHIV virus while excluding other terminal illnesses. Moreover,it would be exceedingly difficult to limit speculative claimsfor damages in litigation under such an exception. Giventhat the underlying policy reasons for the impact rule stillexist, we find that no special exception is justified under thecircumstances of this case.

[4] [5] Finally, we reject R.J.'s argument that his secondamended complaint contains sufficient allegations to meetthe requirements of the physical impact rule. As previouslyindicated, R.J. claimed that, as a result of the misdiagnosis,he suffered “bodily injury including hypertension, pain andsuffering, mental anguish, loss of capacity for the enjoymentof life, and the reasonable expense for medical care andattention.” We find that these intangible, mental injuries areinsufficient to meet the physical injury required under theimpact rule. We do recognize, however, that a negligentmisdiagnosis such as the one at issue could result inunnecessary and harmful medical treatment that does infact cause bodily injury, which, in turn, would satisfy therequirements of a physical impact. Although we find that thetouching of a patient by a doctor and the taking of blood forordinary testing would not qualify for a physical impact, othermore invasive medical treatment or the prescribing of drugswith toxic or adverse side effects would so qualify. If R.J.can establish that the misdiagnosis in this case led to invasivemedical treatment or prescriptions of caustic medication suchas Azidothymidine (commonly known as “AZT”), and thathe suffered bodily injury from that treatment, then he wouldhave met the requirements of the impact rule and would beable to recover for the emotional trauma suffered as a resultof that treatment.

We note that R.J. has had four opportunities to state a causeof action in this case. Ordinarily, when a plaintiff has hadmultiple opportunities to state a case of action, we would notallow a further amendment to the plaintiff's complaint. Giventhis unique factual situation, however, we find that R.J. shouldhave an opportunity to state a claim under the principles setforth in this opinion.

Accordingly, we answer the certified question in theaffirmative, quash the district court's decision to the extentthat it is inconsistent with this opinion, and return this case tothe district court with directions that it remand the case to thetrial court to allow R.J. to amend the complaint.

It is so ordered.

GRIMES, C.J., SHAW and HARDING, JJ., andMcDONALD, Senior Justice, concur.

KOGAN, J., concurs specially with an opinion.

KOGAN, Justice, specially concurring.Any analysis of the impact rule must begin by placing it inits historical context. As traditionally conceived, the impactrule required that the negligent act itself (1) created a directand immediate physical impact (2) that proximately andforeseeably caused a physical injury (3) that caused or was

associated with psychological distress. See, e.g., Reynoldsv. State Farm Mut. Auto. Ins. Co., 611 So.2d 1294, 1296 (Fla.4th DCA 1992), review denied, 623 So.2d 494 (Fla.1993).Here was the nub of the rule: Absent the impact, the injurymight be compensable but the distress was not. With impact,both were compensable. One judge described the underlyingpolicy in the following terms:

There must be some level of harmwhich one should absorb withoutrecompense as the price he pays forliving in an organized society.

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Stewart v. Gilliam, 271 So.2d 466, 477 (Fla. 4th DCA

1972) (Reed, C.J., dissenting), quashed 291 So.2d 593(Fla.1974).

From its inception, the impact rule essentially imposed atemporal element necessary for recovery: The negligent acthad to inflict an immediate impact, not merely an injury atsome remove. One of the more frequent *365 fact patterns inthe case law was of pregnant women who suffered a fright andthen miscarried some time later. In the early days of the impactdoctrine, the courts in England and the United States seemedquite uniform in denying liability in these cases, based on theimpact doctrine. W. Page Keeton et al., Prosser and Keetonon the Law of Torts, § 54, at 363 (5th ed. 1984). This wasbecause there was injury (the miscarriage) but no immediate“impact.”

Beginning at the end of the last century, a number ofjurisdictions became heartily dissatisfied with the obviousharshness of the impact rule. As a result, many courtsstrained the rule well beyond its limits in an effort toachieve justice. The leading authority in American tort lawpokes considerable fun at some of the absurdities the ruleengendered. Among the events courts found to be “impacts”are dust in the eye, inhalation of smoke, and a circus animal“evacuat[ing] his bowels” into a plaintiff's lap. W. PageKeeton et al., Prosser and Keeton on the Law of Torts, § 54,at 363–64 (5th ed. 1984).

As a result of this dissatisfaction, a new and more reasonablerule emerged that now is recognized in more than thirty states.

Gonzalez v. Metropolitan Dade County Public HealthTrust, 651 So.2d 673 at 674 & n. 1 (Fla.1995). It can be

described as the “actual-injury” rule. 3 While some havecharacterized this new rule as a major departure, it actuallyis not. All that it did was eliminate the impact requirement—the temporal element—which already was being ignoredin a number of creative if disingenuous ways. Under thissecond rule, a plaintiff must prove that the negligent act itself(1) proximately and foreseeably caused an injury (2) thatcaused or was associated with psychological distress. If aninjury existed, then recovery for the distress also was allowed.Without injury, there could be no recovery.

A few states have gone further by eliminating the injuryrequirement, thereby establishing negligent infliction ofemotional distress as a freestanding tort. But the actual-injuryrule nevertheless remains the controlling law in the clearmajority of American jurisdictions. Id. Florida has neverrecognized negligent infliction of emotional distress as afreestanding tort.

I think that this Court's discussion of the impact rule in recentyears has lost sight of the fact that there are three differentrules states have adopted, not merely two. The majority fallsinto this mistake when it argues that the only alternative tothe impact rule would be to permit recovery “in the absenceof physical injury.” Majority op. at 363. Having said this,the majority then proceeds to hold that a cause of actionnevertheless exists if misdiagnosis results in inappropriatemedical care that in turn causes “bodily injury.” Majority

op. at 364; accord Kush v. Lloyd, 616 So.2d 415, 422–23(Fla.1992).

I frankly have some difficulty saying that the “impact”identified by the majority here can be considered the directand immediate consequence of the negligent act, at least in theclassic sense. The temporal element of the traditional impactrule meant that the negligent act and the impact must occurvirtually simultaneously. Here, such is not the case. Whilethe record is not clear, it is susceptible of a construction thatthe negligent blood test may have resulted in many monthsof inappropriate medical treatment, which caused an injury.But characterizing this as an “impact” would not be accurate,any more than would so characterizing the loss of a fetus inthe miscarriage cases. The majority is blurring the conceptsof “impact” and “injury,” and thereby may be abrogating theFlorida impact rule in actual effect.

The distinction between impact and injury is a crucial oneif the majority actually believes it is preserving the impactrule by today's opinion. I think this conclusion is especiallycompelling in light of a contemporaneous case this Court

is deciding. In Gonzalez, 651 So.2d at 674, the Courtexpressly distinguishes the impact rule and the actual-injuryrule in the same terms I have used above. Yet, we are not fullyhonoring the distinction in practice, as several other cases

*366 also demonstrate. Kush, 616 So.2d at 422–23.

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I do not quarrel with the result the majority reaches. Ifmisdiagnosis proximately and foreseeably causes a person toreceive inappropriate treatment, then a cause of action shouldand does exist in Florida both for the injury sustained and theemotional distress suffered. This is true whether or not thereis an “impact,” because any other result would be inherently

unfair and contrary to the central policies of tort law. Id.at 424 (tort law meant to put injured party in nearly the statethat would have existed absent negligent injury). Yet, I alsothink the time has come for us to acknowledge the confusioncaused by our case law when we mistakenly and vehemently“reaffirm” the impact rule while we ourselves actually seemto be laying it in the grave.

Today's decision may well be distinguished on its facts orlimited to misdiagnosis cases. But I do not see how we cantacitly equate impact and injury without ultimately doing soin every other negligent-infliction case. When that day comes,Florida will honor the impact rule in name only, and theactual-injury rule will otherwise prevail. Indeed, that day mayalready have arrived.

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Footnotes

1 Art. V, § 3(b)(4), Fla. Const.2 In McCarson, we approved section 46 of the Restatement (Second) of Torts (1965), which provides in

pertinent part:d. It has not been enough that the defendant has acted with an intent which is tortious or even criminal,or that he has intended to inflict emotional distress, or even that his conduct has been characterized by“malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.Liability has been found only where the conduct has been so outrageous in character, and so extremein degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterlyintolerable in a civilized community. Generally, the case is one in which the recitation of the facts to anaverage member of the community would arouse his resentment against the actor, and lead him to exclaim,“Outrageous!”....i. Intention and recklessness. The rule stated in this Section applies where the actor desires to inflict severeemotional distress, and also where he knows that such distress is certain, or substantially certain, to resultfrom his conduct. It applies also where he acts reckless, as that term is defined in § 500, in deliberatedisregard of a high degree of probability that the emotional distress will follow.

3 There has been much debate over the definition of the word “injury.” We need not address that questiontoday, because a patient receiving improper and potentially dangerous medical treatment clearly would sufferan actual “injury” within the meaning of the law.

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58 So.3d 878District Court of Appeal of Florida,

First District.

William Robert ELLIOTT, Appellant,v.

Douglas ELLIOTT and Mary Ann Hooper, Appellees.

No. 1D09–5768.|

Feb. 7, 2011.|

Rehearing Denied March 18, 2011.

SynopsisBackground: Decedent's adult children brought actionagainst their sibling, who allegedly dismembered theirmother's corpse, burned it in a barrel, and scattered theremains on the family's farm without disclosing the locationof the remains, seeking damages for negligent handlingof a corpse, negligent infliction of emotional distress, anddiminution of property value. The Circuit Court, SuwanneeCounty, David W. Fina, J., entered judgment on jury verdictfor children, and sibling appealed.

[Holding:] The District Court of Appeal, Thomas, J., heldthat children did not establish physical impact or sufficientphysical injuries, as required for negligent infliction ofemotional distress claim.

Affirmed in part, reversed in part, and remanded withinstructions.

Procedural Posture(s): On Appeal.

West Headnotes (5)

[1] Dead Bodies Civil liabilities

Although decedent's adult son dismembered hismother's corpse, burned it in barrel, and scatteredthe remains on family's farm without disclosinglocation of remains to his siblings, siblings

did not establish physical impact or sufficientphysical injuries, as required for their negligentinfliction of emotional distress claim; ailmentscomplained of by siblings were headaches,diabetes, sleep apnea, stress, insomnia, anxiety,and loss of appetite, and these were not the sortof demonstrable physical injuries which wererequired when there was no physical impactflowing from son's conduct, there was nothingin record linking siblings' ailments to son'sacts, and siblings were not present when sondismembered, cremated and scattered mother'sremains.

5 Cases that cite this headnote

[2] Damages Physical illness, impact, orinjury;  zone of danger

Generally, in order to recover damages foremotional distress caused by the negligenceof another, the plaintiff must show that theemotional distress flows from physical injuriessustained in an impact, and underlying basisfor the impact rule is that allowing recoveryfor injuries resulting from purely emotionaldistress would open the floodgates for fictitiousor speculative claims.

7 Cases that cite this headnote

[3] Damages Physical illness, impact, orinjury;  zone of danger

Impact rule, requiring plaintiff to show that theemotional distress flows from physical injuriessustained in an impact in order to recoverdamages for negligent infliction of emotionaldistress, yields to narrow exceptions in whichthe foreseeability and gravity of the emotionalinjury involved, and lack of countervailingpolicy concerns, surmount the policy rationaleundergirding application of the impact rule,and underlying basis for the impact rule isthat allowing recovery for injuries resultingfrom purely emotional distress would open thefloodgates for fictitious or speculative claims.

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[4] Damages Physical illness, impact, orinjury;  zone of danger

If plaintiff, asserting claim for negligentinfliction of emotional distress, suffers animpact, he is permitted recovery for theemotional distress flowing from the incident inwhich the impact occurred.

4 Cases that cite this headnote

[5] Damages Injury or Threat to Another; Bystanders

If plaintiff, asserting claim for negligentinfliction of emotional distress, has not sufferedan impact, the mental distress must be manifestedby a discernable physical injury, in that plaintiffmust have been involved in the incident whichinvolved a closely-related person, and theplaintiff must suffer the physical injury within ashort time after the incident.

9 Cases that cite this headnote

Attorneys and Law Firms

*879 Elizabeth K. Russo of Russo Appellate Firm, P.A.,Miami; Lanier Davidson, LLC, St. Augustine, for Appellant.

Matthew C. Mitchell and Stephen C. Bullock of Brannon,Brown, Haley & Bullock, P.A., Lake City; Jack W. Shaw, Jr.,Winter Park, for Appellees.

Opinion

THOMAS, J.

Appellant seeks reversal of a jury verdict arising out ofa complaint filed by his siblings, Appellees, for negligenthandling of a corpse, negligent infliction of emotionaldistress, and diminution of property value. The claims arebased on Appellant's dismembering of their mother's corpse,burning it in a barrel, and scattering the remains on the

family's farm without disclosing the location of the remains.The jury found for the siblings on all claims, resultingin a total judgment award of $1.1 million dollars. Wereverse the trial court's order denying Appellant's motionfor directed verdict on the claim for negligent infliction ofemotional distress, because Appellees failed to establish aphysical impact or sufficient physical injuries resulting fromAppellant's actions. Appellees also failed to prove that theywere involved in the events causing negligent injury, as theywere not present when Appellant dismembered, cremated,and scattered his mother's remains. We affirm the verdict forthe diminution of property value and for negligent handlingof a corpse.

Facts

Appellant and his mother, Martha Elliott, resided togetheron the family's farm. Martha was a real estate agent andworked out of an office with Sharon Elliott, Appellee DouglasElliott's wife. When Martha did not show up for work onNovember 7, 2007, Sharon notified family members of herabsence, who went to check on her. Appellant told them sheleft with an unknown man and would be back in a few days.Sharon determined the information was extraordinary, andshe notified law enforcement and her husband Douglas, whowas working 60 miles away and immediately left to assist inthe search.

A search party converged on the farm, including cadavercanines, helicopters, and a dive team to search the nearbySuwannee River. Douglas and other family members testifiedthey led law enforcement officers around the farm and pointedout locations where Martha's body could have been hidden.Douglas was asked to use his personal tractor to dismantlea mulch pile covering a piece of bloody plastic. The familywas included in daily updates and conferences held by theSuwannee County Sheriff. When Appellant drew a map forlaw enforcement revealing the location of Martha's remains,Douglas interpreted the map and led officers to the field whereMartha's remains were eventually found.

Appellee Mary Ann Hooper lives in Melbourne, Florida, andcould not travel to Suwannee County until November 9, 2007.She assisted in the search, but had to leave before Martha's

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body was found. Douglas called her while she was drivingback to Melbourne and told her the remains had been found.

Medical testimony revealed Mary Ann suffered from stress,insomnia, anxiety, diarrhea, *880 loss of appetite, and hairloss following her mother's death. One physician diagnosedMary Ann with situational anxiety depression and noted shehad a history of depression, anxiety, and chronic pain.

Douglas testified he had a “real, real hollow feeling” knowingMartha had not been buried according to her wishes and that itwas a horrendous situation trying to keep the family togetherafter Martha's death, mainly because of the continuing legalproceedings. He began having headaches and developeddiabetes and sleep apnea after the incident. No medicaltestimony was introduced describing his physical injuries.

During the trial and at the close of Appellees' case,Appellant moved for a directed verdict. Appellant arguedthat Appellees' failed to identify a physical impact sufficientto prove negligent infliction of emotional distress. Thetrial court denied Appellant's motion, finding enoughevidence was presented for the jury to determine whetherAppellees suffered a physical impact. The jury grantedrelief on all claims, and awarded Appellees $400,000 dueto Appellant's negligent handling of a corpse, $600,000for negligent infliction of emotional distress, and $100,000for diminution of property value. Appellant moved for ajudgment notwithstanding the verdict, which was denied.Appellant moved for a new trial after the judgment wasentered, which was also denied.

Appellant raises four issues on appeal, arguing: (1) thetrial court abused its discretion by admitting in this civilproceeding photographic and testimonial evidence from thecriminal investigation; (2) a directed verdict should have beengranted concerning Appellees' claim for negligent inflictionof emotional distress because Appellees failed to establish thenecessary elements of that tort; (3) Appellant was entitled tosummary judgment on the diminution of property claim; and(4) the trial court abused its discretion by refusing to continuethis civil proceeding until Appellant's criminal appeal hasbeen concluded.

We affirm issues 1, 3 and 4 without comment. As to issue2, we agree that Appellees failed to establish the necessary

elements of a claim for negligent infliction of emotionaldistress.

Analysis: The Impact Rule and Its Application Here

[1] The standard of review on appeal of a trial court's orderdenying a directed verdict is de novo; thus we determineas a matter of law whether the trial court erred by allowingthe claim for negligent infliction of emotional distress to beconsidered by the jury. Meruelo v. Mark Andrew of PalmBeaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009) (“Atrial court should grant a motion for directed verdict whenthe evidence, viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differabout the existence of a material fact and the movant isentitled to judgment as a matter of law.”). Applying thisstandard, we hold that Appellees' physical manifestations donot satisfy the supreme court's stringent requirements fordemonstrable physical injury or illness, where there is nophysical impact flowing from the wrongdoer's conduct.

[2] Generally, in order to recover damages for emotionaldistress caused by the negligence of another in Florida, theplaintiff must show that the emotional distress flows from

physical injuries sustained in an impact. See Fla. Dep't of

Corr. v. Abril, 969 So.2d 201, 206 (Fla.2007) (quoting R.J.v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995)).The reasoning behind the impact rule has generally beenthat emotional harm may be difficult to prove, damages arenot easily defined, and the cause *881 of such an injury

can be elusive. See Rowell v. Holt, 850 So.2d 474, 478(Fla.2003). “ ‘[T]he underlying basis for the [impact] ruleis that allowing recovery for injuries resulting from purelyemotional distress would open the floodgates for fictitious

or speculative claims.’ ” Gracey v. Eaker, 837 So.2d 348,

355 (Fla.2002) (alteration in original) (quoting R.J., 652So.2d at 362). Thus, the impact rule has been applied as alimitation to assure the validity of claims for emotional and

psychological harm. Rowell, 850 So.2d at 478.

[3] But the impact rule is not an inflexible command, anddoes yield to narrow exceptions “in which the foreseeabilityand gravity of the emotional injury involved, and lack

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of countervailing policy concerns, have surmounted thepolicy rationale undergirding application of the impact rule.”

Id. Thus, as in Gracey and Holt, for example,where parallel policy considerations expressed in statutoryprotections outweighed the rationale of the impact rule'srequirements, the supreme court stated the rule will yield toexceptions and liability can be established without a physicalimpact.

In a seminal 1985 case involving the supreme court'streatment of the rule, the court concluded that “the price ofdeath or significant discernible physical injury, when causedby psychological trauma resulting from negligent injuryimposed upon a close family member within the sensoryperception of the physical injured person, is too great aharm to require direct physical contact before a cause of

action exists.” Champion v. Gray, 478 So.2d 17, 18–19(Fla.1985) (emphasis added). The court has emphasized thatthe physical impairment must accompany or occur within ashort time after the emotional distress, but it receded fromthe requirement that the plaintiff contemporaneously witness

the injury to another person in Zell v. Meek, 665 So.2d1048, 1053–54 (Fla.1995). After receding from the time

requirement, the Zell court reaffirmed the elements fornegligent infliction of emotional distress:

(1) the plaintiff must suffer aphysical injury; (2) the plaintiff'sphysical injury must be caused by thepsychological trauma; (3) the plaintiffmust be involved in some way in theevent causing the negligent injury toanother; and (4) the plaintiff musthave close personal relationship to thedirectly injured person.

Id. at 1054 (emphasis added).

[4] [5] Put another way, the impact rule in Florida hasevolved into a dichotomy: If the plaintiff suffers an impact, heor she is permitted recovery for the emotional distress flowingfrom the incident in which the impact occurred; if the plaintiff

has not suffered an impact, the mental distress must bemanifested by a discernable physical injury, the plaintiff musthave been involved in the incident which involved a closely-related person, and the plaintiff must suffer the physical injury

within a short time after the incident. See Willis v. GamiGolden Glades, LLC, 967 So.2d 846, 850 (Fla.2007) (quoting

Zell, 665 So.2d at 1050 n. 1). Appellees proceeded belowunder the latter theory.

Beginning in Brown v. Cadillac Motor Car Division,468 So.2d 903, 904 (Fla.1985), which was issued the same

day as Champion, the Florida Supreme Court held that“such psychological trauma must cause a demonstrablephysical injury such as death, paralysis, muscular impairment,or similar objectively discernible physical impairment.”The clearest example of psychological trauma resulting in

physical injury occurred in Champion where the plaintiff'swife “was so overcome with shock and grief that shecollapsed and died on the spot” upon arriving at the scene of

*882 her daughter's death. 478 So.2d at 18. In Zell, thecourt approved the reversal of a summary judgment enteredagainst a plaintiff who developed insomnia, depression, short-term memory loss, extreme fear of loud noises, a blockage inher esophagus, and fibromyalgia after witnessing her father

being killed in an apartment bombing. 665 So.2d at 1049–

50. Medical testimony in Zell linked the plaintiff's medical

conditions to emotional distress. Id. at 1050.

In LeGrande v. Emmanuel, 889 So.2d 991, 995 (Fla. 3d DCA2004), the Third District concluded that exacerbation of pre-existing diabetes and memory loss was “wholly insufficient”to succeed in a negligent infliction of emotional distress

action. In Langbehn v. Public Health Trust of Miami–Dade County, 661 F.Supp.2d 1326, 1332–41 (S.D.Fla.2009),the federal court concluded that stomach pain, nausea,exacerbation of preexisting multiple sclerosis, nightmares,severe depression, and post-traumatic stress disorder “thoughsomewhat thin, would be sufficient to satisfy the impact ruleat this stage of the litigation.” But the court's analysis wasdicta, and we decline to follow the court's description ofthese symptoms as adequate to satisfy the impact rule underFlorida law. See, e.g., Gonzalez–Jimenez de Ruiz v. U.S., 231

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F.Supp.2d 1187, 1201–02 (M.D.Fla.2002) (concluding thataggravation of pre-existing conditions, such as diabetes andasthma, is insufficient to satisfy impact rule), aff'd, 378 F.3d1229, 1231 (11th Cir.2004).

Here, the ailments complained of are headaches, diabetes,sleep apnea, stress, insomnia, anxiety, loss of appetite, hairloss, and bowel trouble, which are not the sort of the

discernable physical injuries discussed in Champion and

Zell. In addition, medical testimony discussing MaryAnn's injuries was equivocal, and no evidence was introduced

linking Douglas's ailments to Appellant's acts. Cf. Zell,665 So.2d at 1050 (noting plaintiff introduced medicaltestimony linking medical conditions to emotional distress),

with Champion, 478 So.2d at 20 (holding plaintiffestablished entitlement to relief without addressing whetherplaintiff's death was medically attributable to emotionalshock).

We also conclude that Appellees failed to satisfy the thirdelement of negligent infliction of emotional distress becauseAppellees were not involved in the dismemberment of

their mother's corpse. See Zell, 665 So.2d at 1054.Neither Douglas nor Mary Ann was present when Appellantdismembered, cremated and scattered Martha's remains.Douglas testified he was on the road the day Martha wentmissing and did not arrive at the farm until that afternoon;Mary Ann did not arrive until two days later. None of thecases discussing negligent infliction of emotional distresscontemplates such a large temporal gap between the incident

and the plaintiff's arrival at the scene. See Champion,478 So.2d at 18 (plaintiff “came immediately to the accident

scene”); Zell, 665 So.2d at 1049 (plaintiff directly involvedin explosion that killed her father).

We likewise reject Appellees' argument that the temporal gapwas irrelevant because the negligent accident in this case

not only included the dismemberment and cremation of theirmother, but also included Appellant's willful omission infailing to disclose the location of Martha's remains duringthe entirety of the search. Although timing of the accidentand perception are only two factors to be considered in anegligent infliction of emotional distress claim, it is importanthere because allowing recovery could create an extension ofthe law, which we are not empowered to do, absent more

definitive direction from the supreme court. See Gonzalezv. *883 Metro. Dade County Pub. Health Trust, 651 So.2d673, 675–76 (Fla.1995) (declining to adopt section 868 ofthe Restatement (Second) of Torts, which would remove thephysical impact requirement and eliminate the physical injurycurrently required under Florida law for claims arising fromnegligent mishandling of corpse).

While we do not diminish Appellees' anguish and suffering inthis distressing case, we hold that under controlling authority,we are not at liberty to affirm the judgment finding forAppellees on negligent infliction of emotional distress basedon the evidence admitted at trial.

Accordingly, we reverse and remand for the trial court tovacate the jury's verdict awarding damages regarding theclaim for negligent infliction of emotional distress, and toenter a directed verdict on that issue in favor of Appellant. Weaffirm all other aspects of the verdict rendered in Appellees'favor.

AFFIRMED in part, REVERSED in part, and REMANDEDwith instructions consistent with this opinion.

KAHN and VAN NORTWICK, JJ., concur.

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2008 WL 1733391Only the Westlaw citation is currently available.

United States District Court,S.D. Florida.

Dee Dee OLSEN, Plaintiff,v.

RT WEST PALM BEACH FRANCHISE,LTD., and Ruby Tuesday, Inc., Defendants.

No. 07-14390-CIV.|

April 14, 2008.

Attorneys and Law Firms

Christopher Alfred Haddad, West Palm Beach, FL, forPlaintiff.

Geralyn Marie Passaro, Stephens Lynn Klein LacavaHoffman & Puya, Fort Lauderdale, FL, Laurie M. Chess,Jones Walker, Miami, FL, for Defendants.

ORDER GRANTING IN PARTDEFENDANTS' MOTIONS TO DISMISS

K. MICHAEL MOORE, District Judge.

*1 THIS CAUSE came before the Court upon DefendantRT West Palm Beach Franchise LTD's Motion to DismissAmended Complaint (dkt # 18) and Defendant Ruby Tuesday,Inc.'s Motion to Dismiss Amended Complaint (dkt # 20).

UPON CONSIDERATION of the Motion, the Responses, thepertinent portions of the record, and being otherwise fullyadvised in the premises, the Court enters the following Order.

I. BACKGROUNDOn November 4, 2003, Plaintiff Dee Dee Olsen (“Olsen”)was eating at Ruby Tuesday, located at 1500 N.W. CourtyardCircle, St. Lucie West, Port St. Lucie, Florida. Duringthe meal, Olsen began breastfeeding her infant daughter.Linda Biro (“Biro”), the manager, asked Olsen to continuebreastfeeding in the public restroom or leave the restaurant.Olsen subsequently filed a six-count complaint in state court

seeking equitable relief and damages. Defendants filed anotice of removal on December 18, 2007 (dkt # 1), and filedan Amended Complaint on February 19, 2008 (dkt # 12). Theparties agree that the first three counts for injunctive relief andloss of consortium should be dismissed. The remaining countsconsist of negligent infliction of emotional distress (CountIV), intentional infliction of emotional distress (Count V), andvicarious liability (Count VI).

II. STANDARD OF REVIEWA motion to dismiss for failure to state a claim merely teststhe sufficiency of the complaint; it does not decide the meritsof the case. Milburn v. United States, 734 F.2d 762, 765 (11thCir.1984). On a motion to dismiss, the Court must acceptthe factual allegations as true and construe the complaint inthe light most favorable to the plaintiff. SEC v. ESM Group,Inc., 835 F.2d 270, 272 (11th Cir.1988). “Factual allegationsmust be enough to raise a right to relief above the speculative

level.” Bell Atlantic Corp. v. Twombly, ---U.S. ----, ----,127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). A complaintmust contain enough facts to indicate the presence of the

required elements. Watts v. Fla. Int'l Univ., 495 F.3d 1289,1302 (11th Cir.2007). “[C]onclusory allegations, unwarranteddeductions of fact or legal conclusions masquerading as facts

will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v.Jaharis, 297 F.3d 1182, 1188 (11th Cir.2002). However, aslong as the allegations rise above a speculative level, a well-pleaded complaint will survive a motion to dismiss “ ‘evenif it appears that a recovery is very remote and unlikely.’

” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2

L.Ed.2d 80 (1957) (overruled on other grounds by BellAtlantic Corp. v. Twombly, --- U.S. ----, ---- - ----, 127 S.Ct.1955, 1959-60, 167 L.Ed.2d 929 (2007) (citation omitted)).

III. ANALYSIS

A. Negligent Infliction of Emotional DistressUnder Florida law,

[T]he prerequisites for recovery fornegligent infliction of emotionaldistress differ depending on whether

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the plaintiff has or has not suffereda physical impact from an externalforce.... If ... the plaintiff has notsuffered an impact, the complained-ofmental distress must be “manifested byphysical injury,” the plaintiff must be“involved” in the incident by seeing,hearing, or arriving on the scene asthe traumatizing event occurs, and theplaintiff must suffer the complained-of mental distress and accompanyingphysical impairment “within a shorttime” of the incident.

*2 Willis v. Garni Golden Glades, LLC, 967 So.2d

846, 873 (Fla.2007) (quoting Eagle-Picher Indus., Inc. v.Cox, 481 So.2d 517, 526 (Fla. 3d DCA 1985). For pleadingpurposes, Plaintiff satisfies the second and third elementsbecause she was present during the allegedly tortious act, andthe allegations indicate that the resulting harm commencedsoon after the incident transpired.

With respect to the first prong, manifestation of physicalinjury, Plaintiff alleges that she “was prevented fromperforming her normal daily activities,” and that sheexperienced “physical manifestations of emotional distress”and “physical anxiety.” Am. Compl. at ¶ 29. A person maybe prevented from performing normal daily activities by amyriad of causes, emotional or physical. Without more, sucha statement is insufficient to factually plead the requisitemanifestation of physical injury. Furthermore, an assertion of“physical manifestations of emotional distress” is conclusorybecause it is merely a recitation of a required element of thecause of action and is devoid of any facts concerning thenature of the physical injury. It is therefore a legal conclusionmasquerading as fact and is insufficient to adequately plead

manifestation of physical injury. See Oxford, 297 F.3d at1188.

Plaintiff also alleges that she experienced “physical anxiety.”Physical manifestations of anxiety may include muscletension, difficulty sleeping, and gastrointestinal discomfortor diarrhea. Anxiety Disorders Ass'n of America, http://www.adaa.org/GettingHelp/AnxietyDisorders/GAD.asp (last

visited April 9, 2008). Plaintiff's assertion that sheexperienced “physical anxiety,” although vague, is sufficientto adequately allege manifestation of physical injury. See

Food Fair Stores of Fla., Inc. v. Macurda, 93 So.2d 860,861 (Fla.1957) (finding that plaintiffs who found worms intheir spinach and suffered vomiting and abdominal painssatisfied the manifestation of physical injury requirement).Therefore, Plaintiff has sufficiently alleged a claim fornegligent infliction of emotional distress.

B. Intentional Infliction of Emotional DistressUnder Florida Law, the elements for intentional infliction ofemotional distress are: “(1) deliberate or reckless inflictionof mental suffering by defendant; (2) by outrageous conduct;(3) which conduct of the defendant must have caused thesuffering; and (4) the suffering must have been severe.”

Ball v. Heilig-Meyers Furniture Co., 35 F.Supp.2d 1371,

1376 (M.D.Fla.1999) (citing Metro. Life Ins. Co. v.McCarson, 467 So.2d 277 (Fla.1985). “While there is noexhaustive or concrete list of what constitutes outrageousconduct, Florida common law has evolved an extremely highstandard. Merrick v. Radisson Hotels Int'l, Inc., 06-cv-01591-T-24TGW (SCB), 2007 WL 1576361, at *4 (M.D.Fla. May30, 2007).

“Liability has been found only where the conduct has beenso outrageous in character ... as to go beyond all possiblebounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.” Metro. Life Ins.Co., 467 So.2d at 278-79. See Merrick, 2007 WL 1576361,at *5 (granting motion to dismiss despite allegations thatdefendant frequently touched plaintiffs buttocks, hips andbreasts, commented about the size of his penis and said

he wanted to show it to her); Helig-Myers FurnitureCo., 35 F.Supp.2d at 1376 (granting motion to dismissdespite allegations that defendant rubbed his penis againstplaintiff's buttocks, made suggestive comments to her whileshe was breastfeeding, and tried to touch her breasts);

Blount v. Sterling Healthcare Group, 934 F.Supp. 1365,1370-71 (S.D.Fla.1996) (granting motion to dismiss despiteallegations that defendant repeatedly rubbed plaintiff's breasts

and made sexually explicit comments to her); Howry v.Nisus, Inc., 910 F.Supp. 576, 580 (M.D.Fla.1995) (granting

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motion to dismiss despite allegations that defendant forcedplaintiff to listen to explicit phone calls, commented onthe size of his penis, forced her to view a suggestive doll,and inappropriately touched himself and others). Given theallegations in the complaint and the difficulty of stating aclaim for intentional infliction of emotional distress, thisCourt finds that there is no possibility that Olsen can prevailon this claim.

C. Vicarious Liability*3 Defendant RT West Palm Beach Franchise, Inc. (“RT

West”) concedes it would be vicariously liable for any tortiousconduct by Biro, but disputes that any such conduct occurred.Defendant Ruby Tuesday, Inc. (“Ruby Tuesday”) contendsit cannot be vicariously liable because at the time of theincident, the restaurant was a franchise and Ruby Tuesday hadno control over its employees or operations. This assertion issupported by a Declaration of Richard Flaherty (dkt # 21-2).However, on a motion to dismiss for failure to state a claim,all allegations must be taken as true. Plaintiff alleges thatBiro was under the control of RT West and Ruby Tuesdayat the time of the incident. Am. Compl. at ¶ 36. Therefore,the assertion of vicarious liability as to both Defendants issufficient to survive a motion to dismiss. Ruby Tuesday may

present its arguments with supporting affidavits on a motionfor summary judgment.

IV. CONCLUSIONFor the foregoing reasons, it is

ORDERED AND ADJUDGED that Defendant RT WestPalm Beach Franchise LTD's Motion to Dismiss AmendedComplaint (dkt # 18) and Defendant Ruby Tuesday, Inc.'sMotion to Dismiss Amended Complaint (dkt # 20) areGRANTED with respect to Counts I, II, and III and V. It isfurther

ORDERED AND ADJUDGED that Defendant RT WestPalm Beach Franchise LTD's Motion to Dismiss AmendedComplaint (dkt # 18) and Defendant Ruby Tuesday, Inc.'sMotion to Dismiss Amended Complaint (dkt # 20) areDENIED with respect to Counts IV and VI.

DONE AND ORDERED in Chambers at Miami, Florida, this11th day of April, 2008.

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