Is General Negligence the New Exception to the Florida Impact Rule?

The impact rule is an ancient torts doctrine that precludes recovery for emotional distress unless the victim has been physically impacted by the tortfeasor and the emotional distress grew out of that physical impact. American courts widely adopted the impact rule and it persists in a handful of states to this day. Courts give several reasons for denying these negligent infliction of emotional distress (NIED) claims and these reasons fall into three broad categories: judicial efficiency, evidence concerns, and foreseeability. This paper proposes that Florida abrogate the impact rule and switch to using a general negligence approach for NIED claims. First, this paper gives an overview of the current state of the Florida impact rule, its exceptions, and why the rule exists. This overview shows that the policy benefits that justify the impact rule do not flow from the rule itself. Next, this paper discusses the impact rules as they stand in the four other states that still cling to them. Comparison of these jurisdictions with Florida reveals that Florida’s impact rule is the least restrictive, appearing more like a general negligence analysis. With this background in mind, discussion of Kentucky’s recent abrogation of the impact rule and Tennessee’s overruling of the physical manifestation rule shows that foreseeability is the true core of the impact rule. Lastly, analysis of impact rule cases under a general negligence approach shows Florida already functionally uses general negligence principles in NIED claims. Thus, there is no loss in abrogating the impact rule because Florida is functionally already there