Negligent Infliction of Emotional Distress in Florida

You watched it happen, or you arrived minutes after. Now you cannot sleep, cannot eat, and your body is paying for it.

Florida law does allow some people to sue in that situation. The claim is called negligent infliction of emotional distress. It is narrow, and the jury instruction shows exactly how narrow.

What the claim is

Instruction 420.2 gives the jury the one-sentence version:

"(Claimant) claims that (defendant) was negligent in (describe alleged negligence) which inflicted emotional distress on (claimant)." Fla. Std. Jury Instr. (Civ.) 420.2.

What the jury must find

Instruction 420.6 lists five things. The judge tells the jury the issues are whether:

"a. (defendant) was negligent in (describe alleged negligence), and if so, whether the negligence was a legal cause of injury to (name of injured/deceased); b. (claimant) was involved in some way in the incident that resulted in the injury to (name of injured/deceased); c. (claimant) had a close personal relationship to (name of injured/deceased); d. (claimant) suffered a physical [injury] [condition] [impairment]; and e. (claimant's) physical [injury] [condition] [impairment] resulted from the emotional distress that arose from (claimant's) involvement in the incident." Fla. Std. Jury Instr. (Civ.) 420.6.

The instruction then adds a sentence about being "involved":

"You may find (claimant) was involved in some way in the incident if (claimant) saw or heard some or all of the events making up the entire incident, including the immediate aftermath of the incident." Fla. Std. Jury Instr. (Civ.) 420.6.

What that means in plain English

• Someone else was hurt or killed because of another person's carelessness.
• You were there in some way. You saw it, heard it, or came upon the immediate aftermath.
• You were close to the injured person. The committee notes say there is no requirement of a legal relationship, and that whether a relationship counts is "typically a question of fact." Close family members most often qualify. Because no legal relationship is required, others with a close personal relationship may also qualify. The facts decide.
• You have a physical injury or condition. The distress alone is generally not enough. Examples listed in the committee notes include stomach pain and other physical conditions.
• The physical harm came from the distress. A doctor often has to connect the two.

The notes say the basic elements come from the Florida Supreme Court decisions in Champion v. Gray and Zell v. Meek.

How the claim is pleaded

The claim is brought in a civil complaint, usually alongside the injury or wrongful death claim for the person who was hurt. The complaint generally has to describe:

• the careless act and the incident;
• how you were involved, and what you saw or heard;
• your relationship to the injured person;
• your physical injury or condition, and how it came from the distress.

Filing deadlines apply, generally the same ones as other negligence claims, so do not wait.

What you need to prove

All five things above, by the "greater weight of the evidence." Instruction 420.7 says:

"If the greater weight of the evidence does not support (claimant's) claim, your verdict should be for (defendant)." Fla. Std. Jury Instr. (Civ.) 420.7.

Medical records matter here. Doctors who treat the physical condition, and when they first documented it, are often the heart of the case.

Common defense arguments

• "You were not there." The defense argues you did not see, hear, or come upon the aftermath.
• "Not close enough." They argue the relationship does not qualify.
• "No physical injury." They argue the symptoms are only feelings, or came from another cause.
• "It was already there." Prior anxiety, depression, or stomach and heart conditions.
• "Someone else is to blame." Instruction 420.8 lets the jury apportion fault to others.

What to do now

1. See a doctor for every physical symptom, even if it seems small. Say what happened.
2. Keep a simple daily note of symptoms.
3. Tell your doctors about the incident and how you were involved.
4. Write down what you saw and heard before it fades.
5. Save any records, photos, or messages tied to the day.
6. Talk to a lawyer before speaking with an insurer.

Talk to us

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This page is general information, not legal advice.