MIAMI — The 3rd District Court of Appeal recently overturned a jury’s award of $1.3 million to a Coral Gables woman who claimed she suffered emotional distress after a man who worked for a security company allegedly took video of her several years ago.
Because of Florida’s “impact rule,” she cannot recover for intentional infliction of emotional distress, according to a report by the Miami Herald.
The woman was 17 years old in 2010 when a security guard was accused of taking video of her undressing in her parents' home at the Old Cutler Bay enclave. She filed suit against the security company, Wackenhut — now owned by G4S — that employed the guard, Eric Michael Owens.
According to court documents, a jury ruled in favor of the woman in 2014, saying Owens had psychologically harmed the young woman. Owens had previously been convicted of being a Peeping Tom in California.
However, in November 2016, the award was overturned by the appellate court by a 2-1 vote, the Miami Herald reported. The appeals court ruled the plaintiff couldn’t collect damages under the state’s “impact rule” because there was no physical harm. The Florida Supreme Court is unlikely to hear the case, since the appeals court declined to certify the question.
“You can get lost down a rabbit hole following all the twists and turns of that rule of law,” attorney Joseph Herbert of the firm Icard Merrill told the Florida Record.
“The general rule in Florida is you cannot recover for any of the negligent torts or anything like that, other claims for emotional distress in those types of cases, unless there’s either an actual physical touching of some sort or unless there’s actual physical harm that is a result of the emotional distress,” he said. “For instance, there are some cases where a person experiences something extremely distressing and they suffer something physically, like a stroke. So they have a physical condition that arises because of the emotional distress.”
Herbert thinks that Florida’s impact law may need to be modified.
“A lot of people have suggested that. In fairness, from what I understand, the majority of jurisdictions don’t follow the impact rule any more, or refused to follow it to begin with,” he said. “It’s a very confusing rule. If you take a look back, the rule originated in the late 1800s. At that point, they considered emotional injuries 'in the spirit world,' not connected to this plane of reality. However, at this point in time we have lots of cases that have emotional distress injuries and claims and we have the ability to measure the value of those types of claims.”
Herbert feels the case is likely finished.
“The family may be able to try to petition the Florida Supreme Court, but it’s my understanding that since the question was not certified, probably for all intents and purposes the case is over,” he said.