The Third District Court of Appeals recently held that Florida’s
impact rule precludes recovery against an employer for a plaintiff’s
emotional distress damages arising out of claim of negligent hiring, negligent
retention, or negligent supervision absent physical injury.
The Defendant, a private security company, hired Mr. Owens as a security
guard. Prior to hiring, Mr. Owens, the Defendant interviewed him and conducted
a background check. Mr. Owens successfully passed Defendant’s training
program, drug screening and medical examination, and obtained all necessary
security guard licenses from the State of Florida. However, Owens lied
about previously being convicted for prowling and peeking into an inhabited building.
Thereafter, while working for Defendant, Mr. Owens filmed the Plaintiff,
a minor, while she undressed. Mr. Owens ultimately confessed to videotaping
the Plaintiff and admitted that he had done so on two prior occasions.
Mr. Owens was immediately terminated. Subsequently, Plaintiff filed a
lawsuit against the Defendant alleging that Defendant negligently hired,
retained and supervised Mr. Owens, asserting that Defendant should have
been aware of Mr. Owens’ prior conviction for peeking and prowling.
Plaintiff sought emotional distress damages as a result of the trauma caused
by the incident. At trial, there was no evidence that Plaintiff had suffered
any type of physical injury, and it was undisputed that Owens had never
touched or had any other physical contact with Plaintiff. Plaintiff did
claim that, following the incident, she experienced some generalized illnesses
and physical problems including weight gain, nightmares and feelings of
anxiety. Defendant argued that Florida’s impact rule precluded Plaintiff’s
recovery of purely non-economic damages from emotional trauma.
The Third District Court of Appeals explained that Florida’s impact
rule states that 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.
Florida’s impact rule specifically requires some impact on the plaintiff,
or, in certain situations, the manifestation of severe emotional distress
such as physical injuries or illness. The Third District Court of Appeals
further explained that there are limited exceptions to Florida’s
impact rule for certain torts that are devoid of physical harm and are
of such nature that only reasonable damages flowing from such torts are
emotional damages. The Third District Court of Appeals ultimately held
that negligent hiring, negligent retention and negligent supervision do
not fall within this exception.
Further, the Third District Court of appeals held that it would be improper
to merge Mr. Owens’ intentional conduct with the Defendant negligent
conduct, without differentiating between the two parties’ distinct
actions. Plaintiff argued that when the only foreseeable damages stemming
from an employee’s intentional conduct are non-economic, then Florida’s
impact rule should have no applicability to the employer’s negligent
conduct that facilitated the employee’s intentional conduct. The
Court stated that the torts of negligent hiring, negligent retention and
negligent supervision are fundamentally distinct from the employee’s
underlying, intentional wrong, arguing that blurring the distinction would
be the functional equivalent of imposing vicarious liability on an employer
for the intentional tortious conduct of its employees which Florida courts
have consistently rejected.
This case is important for employers whose employees have engaged in intentional
conduct outside the scope of their employment and limiting the damages
that may be attributable to an employer. However, it also reminds employers
of the importance of adequate screening in the hiring process and training
of employees in order to limit or avoid liability for the acts of employees.
Employers should consider discussing their hiring and training procedures
with an experienced employment and business attorney to ensure they are
position best to limit their liability. The attorneys at Rosenthal Law
Group are available to discuss these matters.