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Bob Carroll
Bob Carroll
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Is It Time To Bury The Impact Rule?

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The Impact Rule in Floida needs to be buried. It is a doctrine that makes no sense and is preventing compensation of some very real, albeit, emotional inuries. The Impact Rule: before a plaintiff can recover damages for emotional distress caused by negligence, the distress must flow from physical injuries the plaintiff sustained in an impact.

The Impact Rule in Floida, created by the courts, needs to be buried by the courts. It is a doctrine that makes no sense and is preventing compensation of some very real, albeit, emotional inuries.

The Impact Rule: before a plaintiff can 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. (R.J. v. Humana of Florida, Inc., 652 So. 2d 360 (Fla. 1995)). “[T]he underlying basis for the rule is that allowing recovery for injuries resulting from purely emotional distress would open the floodgates for fictitious or speculative claims.”

The most recent Florida court decision demonstating the bankruptcy of the Rule is WOODARD v. JUPITER CHRISTIAN SCHOOL, INC 4th District. Case No. 4D04-3531. October 12, 2005.

The application of the impact rule to a claim for negligent infliction of emotional distress is the focus of this appeal. The plaintiffs argue their claim is consistent with the Florida Supreme Court’s recognized exception to the impact rule and the trial court erred in dismissing count three. We disagree and affirm.

The minor plaintiff was a student at the Jupiter Christian School (JCS), a private Bible-centered school, unconnected with any established church. However, the school has a chapel and students are required to attend weekly chapel services. JCS employed Todd Bellhorn as a “Secondary Teacher-HS/Chaplain.”….

The student had attended JCS since the ninth grade. In his senior year, JCS administrators directed Bellhorn to meet with him to question and counsel him about his sexual orientation. Bellhorn asked the student to leave his class, and took him to a private area of the campus.

According to the allegations, Bellhorn assured the student their conversation was confidential. Only after receiving this assurance, did the student disclose he was homosexual. The complaint alleged the student made this disclosure to seek spiritual counsel from Bellhorn as chaplain to receive salvation. Bellhorn then counseled the student about Biblical views of homosexuality.

Bellhorn relayed the information to the school’s administrators, who then disclosed the information to others. The administrators expelled the student from JCS. The complaint alleged the student was berated by the press and the president of JCS, and shunned by his schoolmates as a result of the disclosure.

The complaint included a count that alleged a claim for negligent infliction of emotional distress which certainly appears to be the perfect legal theory upon which to proceed. The defense moved to dismiss arguing the claim was barred by the impact rule. The trial court granted the motion.

The plaintiffs suggest the impact rule does not apply to the wrongful disclosure of confidential information such as that alleged in this case. They claim the alleged breach of the confidential relationship between a member of the clergy and an individual is the same as that excepted from the impact rule by our supreme court in Gracey v. Eaker, 837 So. 2d 348 (Fla. 2002) (a claim for negligent infliction of emotional distress for a psychotherapist’s disclosure of confidential information is not barred by the impact rule). The defendants counter that our supreme court has not yet created an exception for a disclosure made by a member of the clergy. They also argue that Bellhorn’s status as “chaplain” does not fall within the clergyman privilege provided by section 90.505, Florida Statutes (2003) because the school is not connected with any established church.

The appellate opinion then very accurately outlines the history of the Impact Rule:

Since its creation, the Florida Supreme Court has adhered to the impact rule, carving out limited exceptions in extraordinary circumstances. See, e.g., Eastern Airlines, Inc. v. King, 557 So. 2d 574 (Fla. 1990) (recognizing the tort of intentional infliction of emotional distress absent impact); Champion v. Gray, 478 So. 2d 17 (Fla. 1985) (allowing recovery where plaintiff is in the “sensory perception” of physical injuries sustained by a close family member); Kush v. Lloyd, 616 So. 2d 415 (Fla. 1992) (finding rule inapplicable to actions for wrongful birth); Tanner v. Hertzog, 696 So. 2d 705 (Fla. 1997) (impact rule does not preclude recovery of non-economic damages for parents of stillborn child); Gracey v. Eaker (impact rule inapplicable for breach of statutory duty of confidentiality to patient); Rowell v. Holt, 850 So. 2d 474 (Fla. 2003) (impact rule does not preclude recovery for psychological injury due to attorney’s negligence). In short, “[e]xceptions to the rule have been narrowly created and defined in a certain very narrow class of cases in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding application of the impact rule.” Id. at 478.

The Court concludes that the case before it “is yet another set of circumstances asking to be excepted from the reach of the impact rule. This is a task best suited for our supreme court especially in light of the statutory scheme under which the plaintiff seeks recovery.”

We certify the following question to the Florida Supreme Court:

Does the impact rule preclude a claim for negligent infliction of emotional distress arising out of the breach of confidential information provided to a clergyman?