Appellate Update – Florida’s Impact Rule Precludes Recovery of Emotional Distress Damages in Negligent Hiring, Retention, or Supervision Cases Absent of any Physical Injury

November 14, 2016 by on News

In G4S Secure Solutions USA, Inc. v. Golzar, Case No. 3D14-2588 (Fla. 3d DCA Nov. 9, 2016), the Defendant, a private security company, hired Mr. Owens as a security officer.  Owens lied about previously being convicted for peeking and prowling in an inhabited building.  While working for the Defendant, Mr. Owens recorded a video of the Plaintiff, who was a minor, while she undressed.  Mr. Owens eventually confessed to videotaping the Plaintiff on that night and on two prior occasions.  As a result, the Defendant immediately terminated Mr. Owens and he was convicted.  Thereafter, the Plaintiff filed a lawsuit against the Defendant alleging that it negligently hired, retained, and supervised Mr. Owens.  The basis for the Plaintiff’s claim against the Defendant was that it should have been aware of Mr. Owens’ prior conviction for peeking and prowling in 2004.

The Plaintiff sought emotional distress damages for trauma caused by the incident.  The Defendant opposed and argued that Florida’s impact rule precluded recovery of purely non-economic future damages from emotional trauma.

The Third District explained that in order for a plaintiff to recover damages for emotional distress caused by the negligence of another, “the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact.”  Thus, the “rule actually requires some impact on the plaintiff, or, in certain situations, the manifestation of severe emotional distress such as physical injuries or illness.”  The Court recognized that there is a limited exception to Florida’s impact rule for certain torts that are devoid of physical harm and are of such nature that the only reasonable damages flowing form such torts are emotional damages.  However, negligent hiring, negligent retention, and negligent supervision do not fall within this exception.

The Court also noted that it would be improper to merge Mr. Owens’ conduct with the Defendant Security Company.  “Blurring the distinction would be the functional equivalent of imposing vicarious liability on an employer for the intentional tortious conduct of its employee.”  Therefore, the Court reversed the judgment with instructions to enter a final judgment in favor of the Defendant.

If you have any questions about this case or would like to refer an appellate matter, please contact our appellate attorneys. 

Kansas R. Gooden
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Loreyn P. Raab
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