MEMORANDUM
TO:
FROM:
DATE: XXX
RE: XXX
Analysis of whether XXX has a discernible physical injury and whether he has a close personal relationship to XXXX for purposes of a bystander negligent infliction of emotional distress (NIED) claim
Questions Presented
- Under XXX law, does an individual have a discernible physical injury to support a bystander NIED claim when the individual experienced XXXX, facial weakness and paralysis, aggravation of pre-existing psoriasis, brief episodes of dizziness, and insomnia, but when the individual experienced anxiety and depression?
- Under XXXX law, does an individual have a sufficiently close personal relationship with the injured party to support a bystander NIED claim when the individual has known and taken care of the injured party since birth, both parties regard each other as family, spend most special events together (holidays, vacations, birthdays, etc.), and the individual is referred to as “Dad” by the injured party, but when there is no legal relationship between the parties, the individual does not live with the injured party full-time, and the individual has another job besides caretaker of the injured party?
Brief Answers
- Probably yes. In Florida, an individual who has not suffered a direct impact relating to an NIED claim must show psychological trauma that caused a demonstrable physical injury, such as death, paralysis, muscular impairment, or similar objectively discernible physical impairment. Here, the multiple injuries complained of—Bell’s palsy, facial weakness and paralysis, aggravation of pre-existing psoriasis, brief episodes of dizziness, and insomnia—are sufficient to establish a discernible physical injury because these afflictions manifested into paralysis, muscular impairment, a rash of blisters, an inability to sleep, and an inability to perform daily activities.
- Probably yes. In Florida, an individual who has not suffered a direct impact relating to an NIED claim must have a close personal relationship with the injured party; the presiding court will determine on a case by case basis if the relationship element qualifies. Here, the relationship elements between the individual and the injured party—a long and connected history, familial affection, the participation of the individual in memorable events of the injured party, and the individual’s father-figure status in the injured party’s family—are sufficient to establish a close personal relationship because these elements clearly show that both parties lives are deeply intertwined and shows a relationship akin to that of a son and a father.
Statement of Facts
On XXXX, in XXXX County, XXXX, our client, XXXX, went on a tour of the Everglades provided by Thriller Airboat Rides, Inc. with two children under his care, XXX and XXX. During the tour, XXX fell off the airboat and suffered a deep cut on his arm and an impact to his head. Once retrieved, XXX was non-responsive and had suffered significant blood loss. After being helicoptered to the hospital, the doctors told the family that Elliott may require medical attention for the rest of his life.
Before these events, XXXX had known XXX and XXXX since XXXX when XXX and Quincy Shields-Rayburn hired Jose as a nanny. Five months into the job, Jose began living at the XXX dwelling and has resided there since. Over the last eleven years, Jose has participated in nearly every aspect of the children’s lives, including birthdays, family vacations, and game night. Taking care of XXXX and Lois has remained his full-time job. Through the years, Jose has become known as the children’s “Dad” and has been considered an integral part of the family. Jose only spends time away from the Shields-Rayburn family during the weekends and during his six-week paid vacation in the summer.
A few weeks after the incident, resulting from witnessing the accident, Jose began to suffer from insomnia, anxiety, depression, and brief episodes of dizziness and double vision. In addition, the stress aggravated his pre-existing psoriasis (previously dormant for ten years), causing a rash on his scalp, arms, and lower back. Jose also began to suffer from facial weakness and paralysis, making it difficult to make facial expressions and enunciate certain words, and causing the left side of his face to droop. Seven days after the accident, fearing a stroke, Jose visited the ER, where the doctors initially diagnosed his facial weakness and paralysis as Bell’s Palsy. Four days after his visit to the ER, Jose visited his primary physician, who confirmed the diagnosis of Bell’s palsy and his other symptoms. Accordingly, the physician prescribed medication, suggested lifestyle changes, and discouraged Jose from returning to work to relieve his symptoms. Jose’s symptoms persisted and henow seeks our advice as to whether he has suffered a physical discernible injury and whether he has a close personal relationship to the injured party with the intention of seeking a claim against Thriller Airboats for a bystander NIED.
Discussion
Jose would likely have a viable NIED claim against Thriller Airboat Rides because Jose has a discernible physical injury and has a close personal relationship with the injured party. In Florida, if a plaintiff has not suffered an impact, an NIED claim requires four elements: “(1) the plaintiff must suffer a physical injury; (2) the plaintiff’s physical injury must be caused by the psychological trauma; (3) the plaintiff must be involved in some way in the event causing the negligent injury to another; and (4) the plaintiff must have a close personal relationship to the directly injured person.” Zell v. Meek, 665 So. 2d 1048, 1054 (Fla. 1995). This memo analyzes whether Corddry suffered a discernible physical injury and whether he had a sufficiently close relationship with Elliott Shields-Rayburn, who was injured in the airboat accident, to support an NIED claim.
- Jose Has A Discernible Physical Injury
The Court will likely find that Jose suffered a discernible physical injury because his symptoms of Bell’s palsy, facial weakness and paralysis, aggravation of pre-existing psoriasis, brief episodes of dizziness, and insomnia involve some of the key requirements of a discernible physical injury such as paralysis, muscular impairment, and other discernible physical impairments. A discernible physical injury is any “physical injury such as death, paralysis, muscular impairment, or similar objectively discernible physical impairment.” Id. at 1055 n.4.
Emotional injuries that manifest into a demonstrable physical injury can be sufficient to establish a discernible injury for an NIED claim. See Zell v. Meek, 665 So. 2d at 1052. In Zell, the plaintiff experienced insomnia, depression, short-term memory losses, an extreme fear of loud noises, bad dreams, and an inability to stop reliving the event after witnessing her father’s death through a bombing. Id. at 1050. Approximately nine months after the incident, the plaintiff developed symptoms such as orodental dysphagia, fibromyalgia, dyspepsia, and irritable bowel symptoms; the plaintiff’s treating physician attested that these symptoms were onset by the psychological trauma. The Florida Supreme Court affirmed the appellate court’s decision in favor of the plaintiff that the plaintiff’s symptoms were evidence of physical impact. Id. at 1048, 1054. See also Olsen v. R.T. West Palm Beach Franchise, Ltd., No. 07-14390-CIV, 2008 WL 1733391, at *1 (S.D. Fla. Apr. 14, 2008) (denying a motion to dismiss where plaintiff’s allegations of her inability to perform daily activities and physical anxiety were sufficient to support a discernible injury).
However, common ailments or allegations of physical manifestations from emotional or mental distress are inadequate to support a bystander NIED claim. See Elliott v. Elliott, 58 So. 3d 878, 881-82 (Fla. 1st DCA 2011). See also R.J. v. Humana of Fla, Inc., 652 So. 2d 361 (Fla. 1995) (affirming dismissal and remanding case where the plaintiff failed to satisfy a demonstrable physical injury because the alleged injuries such as hypertension, and loss of capacity for enjoyment of life as a result of HIV misdiagnosis were considered intangible and mental injuries).
In Elliott, the defendant’s sister suffered from symptoms such as stress, diarrhea, loss of appetite, hair loss, situational anxiety, and had a history of depression and chronic pain after finding his mother’s body buried on the family farm. Id. at 879-80. The Appellate court entered a verdict in favor of the defendant holding that the ailments complained of were not discernible physical injuries needed to satisfy a bystander NIED claim. Id. at 883. See also LeGrande v. Emmanuel, 889 So. 2d 991 (Fla. 3d DCA 2004) (affirming dismissal of NIED claim where the plaintiff failed to satisfy a demonstrable physical injury because the alleged injuries of aggravated pre-existing diabetes, memory loss, and the loss of over sixty-percent of his congregation were insufficient to state a cause of action for NIED).
Here, Jose’s ailments all constitute discernible physical injuries. In Zell, the court held that the plaintiff’s esophageal blockage and physical impairment in her stomach and chest were discernible physical injuries. Similarly, here Jose’s injuries—including Bell’s Palsy and facial weakness and paralysis—are analogous to the blockage and impairment claimed by the plaintiff in Zell. Jose’s facial weakness and paralysis, has made it difficult to make facial expressions, enunciate certain words, and caused the left side of his face to droop similar to how the plaintiff in Zell was unable to swallow and had difficulty in breathing due to her esophageal blockage.
Moreover, Jose’s episodes of dizziness are akin to the physical impairment deemed sufficient in Olsen because his symptoms prevented him from working and completing simple tasks such as speaking clearly. The court in Olsen considered the Plaintiff’s injuries as sufficient to support a discernible injury because the symptoms were manifested physically, even though they were vague. Further, Jose is not only experiencing a difficulty in performing his daily activities and inability to sleep, but he is also experiencing more severe symptoms like Bell’s Palsy which involves both paralysis and muscular impairment. It follows; Jose’s Bell’s Palsy and aggravated psoriasis are irrefutably physical and create a strong case for relief.
However, Thriller Airboats will likely argue that Jose did not suffer a discernible physical injury because Jose’s ailments were common and intangible mental injuries. They may also claim that the plaintiff’s injuries were from pre-existing conditions. In that regard, Thriller Boats may rely on R.J. and LeGrande where the plaintiffs’ injuries were considered not concrete enough to be considered physically discernible. Thriller Boats may also target the aggravation of Jose’s pre-existing psoriasis and rely on Elliott, where the plaintiff’s pre-existing conditions, although exacerbated by the trauma, were considered inadequate for the claim
Despite Thriller Airboats’ arguments, Jose’s facial paralysis is as indisputably physical as the esophagus blockage in Zell. And Jose’s pre-existing psoriasis differs from the pre-existing conditions in Elliott because, Jose’s psoriasis had been inactive for over ten years and only resurged after the mental trauma. Besides, Jose’s Bell’s palsy and aggravated psoriasis should be more than sufficient to establish a valid claim because these injuries involve physical impairments. Therefore, if the courts in Zell and particularly in Olsen found that the claimants had a discernible physical injury, then the Court here will find that Jose’s injuries, which are severe and medically attested to should qualify as well.
- Jose Has A Close Personal Relationship with The Injured Party
The Court will likely find that Jose had a close personal relationship with the injured party because his long and intricate history with the injured party has established a relationship between the two that is not unlike that of a father and a son. A close personal relationship is any relationship where the claimant “who, because of [their] relationship to the [directly] injured party and [their] involvement in the event causing that injury, [are] foreseeably injured. Zell v. Meek, 665 So. 2d at 1052 (quoting Champion v. Gray, 478 So. 2d 17 (Fla.1985)).
The secondarily injured party must have an especially close emotional attachment to the directly injured person. According to the court in Lewis v. Middlesex, lack of a close emotional attachment exists where there is only an occasional contact between the plaintiff and the victim. In Lewis, the plaintiff and the victim, his cousin, lived in different States but worked at the same place. Moreover, the victim did not visit the plaintiff when he was in prison. In that regard, the Court found that the plaintiff and the victim’s relationship failed to meet the standard of emotional attachment required. Lewis, Case No. 6:05-cv-1729-Orl-18KRS.
In Champion v. Gray, the plaintiff’s wife witnessed her deceased daughter’s accident. Immediately, the wife collapsed and died because of shock and grief. Champion, 478 So. 2d 17 (Fla.1985)., at 18. The Florida Supreme Court ruled in favor of the plaintiff and held that to qualify for relief, Plaintiffs must suffer a physical injury caused by psychological trauma, and the plaintiff must be involved in some way in the event causing the negligent injury to another with whom the plaintiff has a close personal relationship. Id. at 20, at 18-19. The Court further clarified that a child, a parent, or a spouse would qualify as a close personal relationship and that other relationships may or may not qualify depending on their circumstances. Id. at 20. See also Watters v. Walgreen Co., 967 So. 2d 930 (Fla. 1st DCA 2007) (where plaintiff’s relationship with their stepfather which involved participation in family activities and addressing each other with terms such as daddy, was sufficient to support a close personal relationship because the relationship element is a question of fact and the lack of legal relationship does not bar their claim).
However, a familial relationship must exist between the plaintiff and the injured person before the plaintiff can recover damages for any psychic trauma resulting from that person’s negligent injury by another. In Reynolds, the district court strictly interpreted the “close family” language in Champion and ruled that there was no legal relationship between the plaintiff and decedent. Reynolds, 611 So. 2d at 1296-97. In this case, the plaintiff and the decedent were in a five-year-old romantic relationship characterized by the plaintiff often visiting the decedent’s family and was considered part of it. Id. at 1295. See also Ferretti v. Weber, 513 So. 2d 1333 (Fla. 3d DCA 1987) (where the plaintiff’s relationship with his “live-in lady friend” was insufficient to qualify as close and personal because there was no legal relationship between the parties).
Here, the Court will likely find that Jose had a close personal relationship with Elliott. This case is like Champion where Jose’s physical injuries are because of the psychological trauma he had after witnessing Elliott’s accident. Besides, he was directly involved in the incidence that caused Elliott’s injury. Champion expanded the threshold for a close and personal relationship beyond that of family ties, depending on the circumstances. Here, although Jose did not have blood ties with Elliott’s family, he participated in the family’s events and has lived with them for the past eleven years. Jose’s circumstances also satisfy the Court’s holding in Watters that a lack of a legal relationship does not rule out a close and personal relationship. It follows; if the courts recognized a close and personal relationship in Champion and Watters, then the Court here will find that a relationship existed between Elliott and Jose.
Thriller Boats is likely to rely on Lewis where the Court considered a cousin relationship as not being close enough to satisfy the need for relief. Thriller Boats may also argue that the Court should use the strict interpretation of a family relationship used in XXXX.
Despite Thriller Boats’ arguments, this case is different from Lewis because the parties lived in different states and only met occasionally. Further, XXXX cannot be applied because the relationship between the parties in Reynolds was romantic, requiring a higher threshold to prove. Therefore, Jose will succeed in proving that he had a close personal relationship with XXX.
Conclusion
The Court will likely find that Jose suffered a discernible physical injury because, in addition to psychological trauma, he suffered paralysis in his face; outbreaks of a rash on his scalp, arms, and back; difficulty sleeping; and an inability to function in his daily activities. A discernible physical injury is when the injury physically manifests itself as death, paralysis, muscular impairment, and similar objectively discernible physical impairment. The Court will likely find that Jose’s relationship to XXXX is a close personal relationship because he participated in Elliott’s family events and has lived with them for the past eleven years
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