IN THE SUPREME COURT OF THE STATE OF FLORIDA. v. CASE NO. ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL FOR THE SECOND DISTRICT OF FLORIDA

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1 IN THE SUPREME COURT OF THE STATE OF FLORIDA KATHLEEN RIVERS Petitioner/Appellant v. CASE NO. GRIMSLEY OIL COMPANY INC. d/b/a STOP N SHOP FOOD STORES Respondent/Appellee / ON DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL FOR THE SECOND DISTRICT OF FLORIDA JURISDICTIONAL BRIEF OF PETITIONER MARK C. MENSER FBN VILES LAW FIRM P.A. POST OFFICE BOX 2486 FORT MYERS, FLA PH. (239) FAX (239)

2 STATEMENT OF THE CASE AND FACTS On December 7, 1998, Petitioner Kathleen Rivers was the victim of an armed robbery while working, alone, at a Stop N Shop store owned and operated by the Respondent Grimsley Oil Co., d/b/a Stop N Shop (hereinafter Grimsley Oil ). The store was devoid of security devices. The robber appeared to have a gun, but did not shoot Ms. Rivers. (App. 2). Ms. Rivers had a severe psychological reaction (an uncontested diagnosis of Post traumatic Stress Disorder, or PTSD) (App. 2). Ms. Rivers was prescribed medications that produced physical side effects including cramps, memory loss and nausea. (App. 2). Suit was filed by Ms. Rivers, against Grimsley Oil on November 1, (R,1,1-3). Grimsley Oil attempted to have the case dismissed, alleging workers compensation immunity, but the motion was denied since the statute did not apply to psychological injury. (App. 2, 3). Grimsley Oil then moved for summary judgment under the physical impact rule. (App. 3). Despite the fact that this Court has ordered case by case development of exceptions to the physical impact rule, particularly for mental injury, the trial court granted summary judgment in the face of Rivers unrebutted evidence (RI, ). 2

3 On April 11, 2003, the appellate court affirmed the trial court s decision without addressing the issue of summary judgment, the unrebutted evidence supporting the claim of injury, or the errors committed by the trial court. The Second District, for what it called historical and practical reasons, affirmed the trial court out of an overarching desire to maintain the traditional scope of negligence law. (App.6) The Court then rejected this Court s decision mandating case-by-case development of exceptions to the impact rule for psychiatric injury, stating that unless the Florida Supreme Court expressly approved a specific injury as an exception to the impact rule, that injury could not be litigated. 3

4 SUMMARY OF ARGUMENT It is respectfully submitted that the discretionary jurisdiction of the Court should be exercised to review the decision by the Second District Court of Appeal, which expressly and directly conflicts with prior decisional law of this Court. First, the District Court rejected this Court s decision mandating case by case evaluation of claims of psychological injury, stating that only claims specifically listed by the Florida Supreme Court may be litigated. (Thus forcing this Court to review virtually every tort case in Florida and report recognized exceptions to the lower courts.) Second, the District Court expressly rejected the exceptions to the physical impact rule recognized by this Court, choosing instead to restrict the exceptions (to the impact rule) to the narrowest possible definitions. 4

5 ARGUMENT DISCRETIONARY REVIEW SHOULD BE GRANTED TO ADDRESS THE DISTRICT COURT S DECISION NOT TO APPLY DECISIONAL LAW OF THIS COURT TO CRIME VICTIMS SUFFERING PTSD AND RELATED PHYSICAL REACTIONS TO LEGITIMATELY PRESCRIBED MEDICATIONS This is yet another case involving the archaic physical impact rule. Unlike cases such as Hagan v. Coca Cola Bottling Co., 804 So.2d 1234 (Fla. 2001), however, this is not a case challenging the existence of that rule. Rather, this petition challenges the Second District s rejection of the decision of this Court calling for case-by-case common law development of exceptions to the physical impact rule in cases involving legitimate claims of psychic trauma and physical injury stemming from said trauma. held: In Champion v. Gray, 478 So.2d 17, (Fla. 1985), this Court We today modify to a limited extent our previous holdings on the impact doctrine. In doing so, however, we are unable to establish a rigid hard and fast rule that would set the parameters for recovery for psychic trauma in every case that may arise. The outer limits of this cause of action will be established by the courts of this state in the traditional manner of common law on a case-by-case basis. Any considered reading of Justice Alderman s opinion leads to the conclusion that case-by-case development, under the common law, of exceptions to the impact rule would stem from the trial courts. Under the 5

6 Second District s decision, however, such development would be impossible, since crime victims would be booted out of court by summary judgment, even in the face of unrebutted evidence of the legitimacy of their claims (as in this case), without ever getting the chance to obtain consideration of the issue. In other words, there would be no case by case development at all. Instead, the Second District has tasked the Florida Supreme Court with the obligation to independently develop an exceptions list and provide it to the lower courts. There is clearly express and direct conflict between the decision of the Second District Court of Appeal and the decisions of this Honorable Court in such cases as Champion v. Gray, 478 So.2d 17 (Fla. 1985); Kush v. Lloyd, 616 So.2d 415 (Fla. 1992); Zell v. Meek, 665 So.2d 1048 (Fla. 1995) and Tanner v. Hartog, 696 So.2d 705 (Fla. 1997), recognizing that there is an exception to the physical impact rule for psychological trauma that is medically verified, and rejecting the concept of a temporal aspect of the physical impact rule. See Zell v. Meek, supra. These exceptions are summarized neatly in Hagan v. Coca-Cola Bottling Co., 804 So.2d 1234, (Fla. 2001) as follows: We begin by acknowledging that although many states have abolished the impact rule, several states, including Florida, still adhere to the rule. This Court, while acknowledging exceptions, has accepted the impact rule as a limitation on 6

7 certain claims as a means for assuring the validity of claims for emotional or psychic damages. R.J. and P.J. v. Humana of Florida Inc., 652 So.2d 360, 363 (Fla. 1995); Zell v. Meek, 665 So.2d 1048 (Fla. 1995); Gonzalez v. Metropolitan Dade County Public Health Trust, 651 So.2d 673 (Fla. 1995); Gilliam v. Stewart, 291 So.2d 593 (Fla. 1974). Generally stated, the impact rule requires that before a plaintiff may recover damages for emotional distress, she must demonstrate that the emotional distress suffered flowed from injuries sustained in an impact. [citation] Notwithstanding our adherence to the rule, this Court has noted several instances where the impact rule should not preclude an otherwise valid claim. For example, this Court modified the impact rule in bystander cases by excusing the lack of a physical impact. In such cases, recovery for emotional distress would be permitted where one person suffers death or significant discernable physical injury when caused by psychological trauma resulting from a negligent injury imposed on a close family member within the sensory perception of the physically injured person. Champion v. Gray, 478 So.2d 17,18 (Fla. 1985) see also Zell v. Meek, 665 So.2d 1048(Fla. 1995) (reaffirming rule in bystander cases but rejecting temporal proximity requirement). We have also held that the impact rule does not apply to claims for intentional infliction of emotional distress, see Eastern Airlines, Inc. v. King, 557 So.2d 574 (Fla. 1990), wrongful birth, see Kush v. Lloyd, 616 So.2d 415 (Fla. 1992), negligence claims involving stillbirth, see Tanner v. Hartog, 696 So.2d 705 (Fla. 1997) and bad faith claims against an insurance carrier, see Time Ins. Co. v. Burger, 712 So.2d 389 (Fla. 1998). The cases cited in Hagan analyzed the physical impact rule, as it relates to claims of psychological trauma, recognizing that (a) psychological trauma does exist and (b) that when verifiable psychic injury is present, and has a nexus to the underlying tort, it is compensable. What this Court did 7

8 not do, however, is attempt to create a hard and fast shopping list of factspecific instances in which the rule would not apply. The District Court also sought to redefine the physical impact exception as it related to reactions to medications, holding that the exception only applies to misdiagnosis (medical malpractice) when there is a fiduciary relationship between the doctor and patient. Again, this is in express and direct conflict with this Court s decisional law. There is no decision from this Court holding that the impact doctrine only applies if there is medical malpractice. Rather, the case of R.J. and P.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla. 1995) merely included medical malpractice as a part of the growing list of exceptions to the impact rule. Accordingly, the Second District, in express violation of this Court s non exclusive list mandate, treated the R.J. case as one cutting off victims rights except in cases of medical malpractice. The Second District attempted to link this case to what it called the somewhat similar case of Ruttger Hotel Corp. v. Wagner, 691 So.2d 1177 (Fla. 3 rd DCA 1997). The cases are not similar. In Ruttger, a robber accosted some hotel guests and pushed them into a bathroom. In our case, Kathleen Rivers was alone, in a convenience store, facing an armed robber with no security system in place. Hotel guests are sometimes robbed, but 8

9 solitary store clerks are routinely murdered. In Ruttger, the alleged psychological injury was aggravation of diabetes due to emotional distress. It was not PTSD, nor did it involve adverse physical reactions to prescribed medications. While it is not the purpose of this brief to argue the merits of the impact rule, it would be negligent on the victim s part not to ask that the Court take notice of the fact that the impact rule has not kept pace with medical science. It is an anachronism grounded in suspicion and ignorance. That ignorance was manifested in the trial court by the improper comparison of Ms. Rivers case to fraudulent claims. Kathleen Rivers is a crime victim, not a criminal. She was entitled to litigate her fully (medically) corroborated claim of PTSD before a jury, and the Second District erred in rejecting this Court s decision mandating case-by-case development of PTSD claims as an exception to the physical impact rule. CONCLUSION Discretionary review is requested to remedy a decision of the Second District Court of Appeal, which is in express and direct conflict with prior rulings of this Court. 9

10 CERTIFICATE OF TYPE SIZE The petitioner hereby certifies that this brief was prepared using Times New Roman 14 font as permitted by the Florida Rules of Appellate Procedure. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished by regular U.S. Mail to J. Rodney Runyons, Esquire, Coward, Runyons & Cooley, Lincoln Center, Suite 800, 5401 West Kennedy Blvd., Tampa, FL 33609, on this day of May, VILES & ELLIS, P.A. Attorneys for Plaintiff/Appellant Post Office Box 2486 Fort Myers, Florida Telephone: (239) Facsimile: (239) By: Mark C. Menser, Esquire Florida Bar Number: