The Confusing Laws for Victims With Only Emotional or Mental Damages

Victims of injuries very often suffer not only physical injuries, but emotional ones as well. Anxiety, fear, post traumatic stress disorder, and any number of mental ailments are natural consequences of injury, and damages for these injuries can be recovered from a liable party in a personal injury suit. But what if you have only mental or emotional injuries, without physical injury? In these cases, the law makes it much tougher to recover damages.

Situations Where Victims Might Have Only Emotional/Mental Damages

In many cases, someone may suffer no physical injury or impact at all, but still have mental or emotional injury. Emotional damage can stem from an event that happened to you, or from witnessing something happen to a loved one. Some common examples of situations where there may only be emotional damage would be:

– Standing on the corner watching your mother cross the street when she is hit by a car;

– Observing a relative victimized by medical malpractice;

– Witnessing (but not eating) a foreign object in your food;

– Learning that the grave where you thought a loved one is buried is actually not there; or

– Learning that a child has been victimized at school or an after care activity.

All of these are horrific, the fault of another’s negligence, and likely to lead to emotional trauma. But you haven’t actually sustained any direct physical injury, meaning your emotional damages may be difficult to recover damages for.

The Impact Rule

Florida has adopted what is known as the “impact rule.” The impact rule requires that, in order to recover for only emotional trauma, you must sustain some physical contact, no matter how slight, and even if the physical contact itself doesn’t injure you. So if a robber simply touches his gun to your forehead, or your lips touch a foreign substance on the food, or you ingest harmful particles while breathing, you have physical contact—“impact”—and can recover for claims with only emotional damages.

There are exceptions to this “impact rule.” You can recover for just emotional damages if (1) your emotional or mental trauma is manifesting itself in a physical way, for example, headaches, dizziness, or even a heart attack, (2) you were involved in some way with the event that caused the trauma, and (3) you had a close personal relationship with the injured person.

Still, even with the exception, many situations still would be barred from damage recovery because of the Impact Rule.

For example:

– If a child is sexually abused, but you were not present at the time it was happening, you may still be barred recovery;

– If a child is born stillborn because of malpractice, you were not part of the malpractice or involved in it, and thus, may be prohibited from recovering; and

– If a loved one is not in a grave site you were told they were in, you were not involved with that, and did not observe it, and thus, may not be able to recover.

It’s worth noting that the “impact rule” only applies if there is an injury caused by negligence—not by an intentional act, where courts are more likely to allow emotional-only damage claims.

Emotional damages are one of the most complex and confusing areas of personal injury law. If you have suffered any kind of injury because of the actions of another, talk to the Miami personal injury attorneys at Gerson & Schwartz, P.A. for a free consultation to discuss your case.


Contact Information