Negligent Infliction Of Emotional Distress Claims
In Florida, personal injury claims require a physical injury due to a traumatic impact. Think of broken bones caused by a car accident or a sprained back due to a slip and fall. Although victims can seek compensation for emotional distress, these damages depend on a physical injury. This is called the “impact rule,” and Florida is one of a handful of states that still follows it.
In a small number of cases, however, a client can bring a negligent infliction of emotional distress claim, called NIED, even if they did not suffer a traumatic blow to their body. Instead, the claim compensates for physical injuries caused by psychological trauma. Contact our law firm to learn more.
Elements of an NIED Claim
Florida has limited these claims to a small subset of people who witness a loved one being injured. To make a successful claim, you need to show the following elements:
- You witnessed or were involved in some way with a negligent accident, such as a car crash.
- You had a close personal relationship to the person injured in the accident, such as your child or spouse.
- You suffered psychological trauma because of witnessing the accident.
- Your psychological trauma caused some sort of physical injury.
As you can see, you can only bring the claim if your relationship to the person injured was sufficiently close. If you see a stranger get run over by a truck, for example, you cannot bring a claim for NIED, no matter how traumatized you feel. By contrast, if your child is injured in an accident and you witness it, then you might qualify.
Florida requires that you have a discernible physical injury for a simple reason: this helps weed out fraudulent claims. Emotional distress is generally not visible; however, it can become visible when it causes physical impairments. You will need to fully document, using medical evidence, the physical injuries your emotional distress is causing.
Florida’s Supreme Court has clarified that your injury must be more than general pain or hypertension. However, it is not always clear whether a physical injury is sufficiently serious to qualify. In one case, the Florida Supreme Court found that joint pain, difficulty swallowing, and irritable bowel symptoms were sufficiently definite to support a claim for compensation.
Another key issue is causation. In particular, your physical injury needs to manifest within a reasonable amount of time following the accident you witnessed. If months go by in which you feel fine, then the causal link is broken. However, your claim is strong if you at least suffered some physical ailment initially that progressively worsened over time.
Do You Have a Claim?
If you witnessed a loved one become injured or die, then you should carefully consider whether to bring an NIED claim. Any claim you have would be in addition to your spouse or child’s claim. It also would be separate from any loss of consortium claim that you raise.