Can you sue for emotional distress in Florida? Yes, here are your options

I will cover the various ways you can sue and recover for emotional distress in Florida. The short answer is yes you can sue for emotional distress in Florida. However, it will be difficult to recover unless you suffered some physical impact from Defendant.

Emotional distress is also known as mental anguish. They the mean same thing. However, what they do not mean is “pain and suffering.” “Pain and suffering” is a different type of damage you can recover for, but that I won’t be getting into that in this article.

There are two primary ways to sue and acquire compensation for emotional distress in Florida: (1) sue intentional infliction of emotional distress; or (2) recover for negligent infliction of emotional distress.

Each of these methods has its own drawbacks. I will go through each one.

1. First way to recover for emotional distress: Intentional infliction of emotional distress

Under Florida law, to state a claim for intentional distress you must prove the following: (1) the defendant acted recklessly or intentionally; (2) the defendant’s conduct was extreme and outrageous; and (3) the defendant’s conduct caused plaintiff emotional distress; and (4) the plaintiff’s emotional distress was severe.

As you can imagine, these elements are difficult provide because of how subjective they are. Particularly, element (2) is the most subjective, as how do we define what is extreme and outrageous conduct? Every person likely has a different understanding of what is extreme and outrageous.

The Florida Supreme Court has provided us some guidance. In Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277 (Fla.1985), the Florida Supreme Court attempted to define extreme and outrageous conduct:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

Even with the Florida Supreme Court’s clarification, it is still difficult to determine what is considered extreme and outrageous conduct. At the end of the day, the best way to argue that certain facts qualify as intentional infliction of emotional distress, is to compare your situation to other factual situations that courts in Florida have previously deemed to qualify as “outrageous.” This is where have a good lawyer that can do legal research comes in handy.

Below are examples of what the Florida courts have found does not constitute “extreme and outrageous conduct”:

• Plaintiff alleged that in a confrontation over a parking space, Defendant threatened to cause Plaintiff to lose her job, used humiliating language against her, insulted her using racial curse words such as the n word. The court found this conduct was not extreme enough for intentional infliction of emotional distress. Lay v. Roux Labs., Inc., 379 So.2d 451, 452 (Fla. 1st DCA 1980)
• Plaintiff alleged that his former employer employer called him the nword and “monkey” and constantly threatened to terminate him for no reason. The Court found this conduct was not outrageous enough to state a claim for intentional infliction of emotional distress. Williams v. Worldwide Flight SVCS., Inc., 877 So. 2d 869 (Fla. 3rd DCA 2004)

From seeing these examples, it may surprise you that the Courts did not find these situations outrageous enough. The reason is because the courts want to set the bar very high otherwise they are concerned they could open up the flood gates for lawsuits related to emotional distress.

Now here are some examples where the courts determined the defendant engaged in and outrageous conduct:

• Plaintiff was a teacher at a high school. Certain kids at the school created and distributed a newsletter which the author threatened to kill the teacher and rape her and all of her children. The court found the circumstances of this met the criteria for “extreme and outrageous” conduct. Nims v. Harrison, 768 So. 2d 1198 (Fla. 1st DCA 2000)
• Plaintiff sued a worker compensation carrier for delaying in providing funds from Plaintiff’s lung transfer treatment. Plaintiff alleged that the worker’s compensation carrier knew of Plaintiff’s dire situation, that he may not live without the treatment. Also what is critical, is that the issue of whether Plaintiff’s treatment was covered was already litigated and resolved in favor of the Plaintiff, so the insurance carrier knew it had to pay for the treatment. Even after knowing it had to pay for treatment, the insurance carrier dragged its feet. The court found based on these circumstances, the conduct of Defendant was “extreme and outrageous.” Liberty Mut. Ins. Co. v. Steadman, 968 So. 2d 592 (Fla. Dist. Ct. App. 2007)

2. Second way to recover for emotional distress: Negligent Infliction of Emotional Distress

Negligent infliction of emotional distress happens when the emotional distress was caused by Defendant by accident or as unintended. There are still obstacles that a plaintiff needs to overcome to recover under this cause of action.

Under a negligent infliction of emotional distress, there are two ways a plaintiff can recover. The first is when a plaintiff suffered “physical impact from an external force.” The second is if Plaintiff suffered a physical injury from their mental anguish.

To recover under negligent infliction of emotional distress, it helps if you were physically impacted

Lets talk about the first method, “physical impact from an external force.” What would be a physical impact? It is exactly as it sounds. You would need to have been impacted in some physical way, even if the impact was very minimal. In Florida, this is known as the impact rule. One Florida court stated that even a small touch of a barrel of gun against the Plaintiff satisfies the impact rule. Garrett-Alfred v. Facebook, Inc., No. 8:20-CV-0585-KKM-CPT, 2021 WL 1946699 (M.D. Fla. May 14, 2021)

If Plaintiff has not suffered a physical impact from the incident (like being physical injured in car accident), then plaintiff can only recover under the second method of negligent infliction of emotional distress, which requires that Plaintiff suffer a physical injury as a result of their emotional distress.

If you haven’t been physically impacted, you show some physical injury related to your emotional distress

When plaintiff has not been physically impacted by defendant, plaintiff needs to prove the following elements: (1) the plaintiff must suffer a physical injury; (2) the physical injury must be caused by emotional or mental distress; (3) plaintiff must be involved in some way in the event causing negligent injury to another; and (4) plaintiff must have a close personal relationship to the directly injured person.

This standard of emotional distress is also very difficult to meet. The first two elements require plaintiff to suffer a physical injury caused by emotional and mental distress. What could this mean exactly? According to the Florida Supreme Court, that would be: “death, paralysis, muscular impairment, or similar objectively discernible physical impairment.” Brown v. Cadillac Motor Car Div., 468 So. 2d 903 (Fla. 1985).

Then, in addition to having some physical manifestation of psychology trauma, plaintiff must be involved in some way. By being involved, the courts mean the plaintiff must see, hear or arrive on the scene as the traumatizing event occurs. Additionally, they must also have a close personal relationship with the injured person.

The bottom line, to recover from negligent infliction of emotional distress you need either (1) to have been physically impacted by the negligent event, in which case you could recover for mental distress that does not manifest in a physical injury; or (2) suffered a physical injury as manifestation of your mental anguish caused by a negligent event to someone else close to you.

In Brown v. Cadillac Motor Car Div., 468 So. 2d 903 (Fla. 1985), which was a case in front of the Florida Supreme court, a man sued a car manufacturer when the man’s defective automobile, through no fault of his own, wouldn’t stop, causing him to run over and kill his own mother. He sued the manufacturer claiming for emotional distress. He argued that the car manufacturer was negligent in designing their vehicle, and as a result of their negligence, his mother was killed. The Florida Supreme Court found that the man could not recover for negligent infliction of emotional distress because (1) he was not physically impacted by the car manufacturer’s negligence and (2) he did not otherwise have any physical manifestation of emotional distress.

Below are some other examples of what the court ruled that the facts DID NOT meet the standard for negligent infliction of emotional distress:

• In one case, a bank customer who had a rifle pointed at him during a bank robbery sued the bank for negligent infliction of emotional distress. The Court found that the customer did not have a cause of action for negligent infliction of emotional distress in light of the absence of a physical impact or physical injury. Reiser v. Wachovia Corp., 935 So. 2d 1236, 1236 (Fla. 5th DCA 2006)
• In another case, a minister alleged that two parishioners told other parishioners at a church meeting that the minister purchased a car with stolen cash from the church. According, to the minister, the slanderous statements aggravated his pre-existing diabetes condition, caused memory loss, and resulted in loss of the congregation. The Court found that Plaintiff did not state a cause of action for negligent infliction of emotional distress. LeGrande v. Emmanuel, 889 So. 2d 991, 994 (Fla. 3rd DCA 2004)

Conclusion:

To sum up, you can obtain damages for emotional distress, but it is difficult. Because courts are hesitant to award people damages for emotional distress, Florida courts have set the bar very high. The courts are worried that if the bar was lower, the court systems would be flooded with lawsuits.

To recover emotional distress related to plaintiff’s intentional conduct, the main hurdle you will encounter is showing their conduct was “extreme and outrageous.” This is a subjective standard.

To recover for emotional distress related to plaintiff’s negligent conduct, either (a) plaintiff will have had to made physical contact with you; (b) or your emotional distress must have manifested in a physical injury.