Yes, there is intentional infliction of severe emotional distress in Florida
Mention the phrase “intentional infliction of severe emotional distress” to a Florida lawyer and you might receive a roll of the eyes or a snicker. Many Florida attorneys believe that intentional infliction of severe emotional distress, or IIED, is nothing more than a theoretical concept briefly touched upon in law school classrooms. But intentional infliction of severe emotional distress is alive in Florida, with Florida attorneys and appellate courts exploring its threshold and outer limits. This article attempts to illuminate the range of intentional infliction of severe emotional distress in Florida law. Should you have any questions regarding intentional infliction of severe emotional distress in Florida or would simply like to discuss, please contact Bernhard Law Firm PLLC at email@example.com, 786-871-3349, www.bernhardlawfirm.com.
Under Florida law, a court should allow a lawsuit for intentional infliction of severe emotional distress to proceed where the defendant’s shocking and scandalous acts should cause an average member of the community to exclaim “Outrageous!” The Florida appellate courts have held that, as a matter of law, the following three situations generally provide the “Outrageous!” conduct to support a lawsuit for intentional infliction of severe emotional distress:
- IIED upon children;
- IIED where a company abuses its power, position of trust, or fiduciary duty for financial gain; and
- IIED upon families.
Intentional infliction of severe emotional distress conduct should cause an average member of the community to exclaim “Outrageous!”
A cause of action for intentional infliction of severe emotional distress, also referred to the by Third District Court of Appeal as “outrageous conduct causing severe emotional distress,” has the following elements: “(1) the wrongdoer’s conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result; (2) the conduct was outrageous and is to be regarded as odious and utterly intolerable in a civilized community; (3) the conduct caused the emotional distress; and (4) the emotional distress was severe. Dominguez v. Equitable Life Assur. Soc. of U.S., 438 So. 2d 58, 59 (Fla. 3d DCA 1983) (reversing dismissal of IIED claim for failure to state a cause of action where insurance agent misrepresented client’s disability and coverage under a policy to induce him to give up the policy voluntarily). The Florida appellate courts have stated the test to state a claim for IIED as follows: “[An IIED] case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Food Fair, Inc. v. Anderson, 382 So. 2d 150, 153 (Fla. 5th DCA 1980).
IIED upon children
Florida law provides an intentional infliction of severe emotional distress cause of action for intentional acts calculated to cause children emotional pain in a reckless or malicious way. In Korbin v. Berlin, 177 So. 2d 551 (Fla. 3d DCA 1965), the Third District Court of Appeal reversed a trial court’s dismissal of an IIED complaint for failure to state a cause of action, where a six-year-old girl’s guardian alleged that the defendant approached the girl and represented that the child’s parents had committed adultery and would be punished for it. Korbin v. Berlin, 177 So. 2d 551, 552 (Fla. 3d DCA 1965) (holding complaint stated a cause of action for IIED). The plaintiff in Korbin alleged that the statements were knowingly false and made in utter disregard of the feelings of the six-year-old plaintiff and for the purpose of causing her mental pain. Id. The Third District held that “the determinative question here is whether what was said to the child was intended or reasonably calculated to cause the child ‘severe emotional distress.’” Id. at 553. If “[t]he alleged statements and the manner and circumstances under which they were communicated to the child leave little room to doubt they were made with a purpose and intent to shame her, and to shock the sensibilities of this child of tender years. . . Relating, as they did, to the child’s [family member],” then “it cannot be said as a matter of law that this alleged deliberately harmful act was not one ‘calculated to cause severe emotional distress to a person [child] of ordinary sensibilities.’” Id.
The Third District Court of Appeal has reiterated that:
“Korbin, never overruled, receded from, discredited or adequately distinguished, is clear precedent for our holding today that a cause of action for emotional distress brought about by outrageous conduct lies notwithstanding the absence of another tort. Indeed, Korbin is the only authority in this court which is undiluted by an alternative holding that the conduct involved was not outrageous.” Dominguez v. Equitable Life Assur. Soc. of U.S., 438 So. 2d 58, 60 (Fla. 3d DCA 1983) (holding that allegations stated cause of action for IIED).
IIED where a company abuses its power, position of trust, or fiduciary duty for financial gain
Florida law provides an intentional infliction of severe emotional distress cause of action where a company abuses its power, position of trust, or fiduciary duty for financial gain by causing fear and emotional distress in others. For example, in Miller v. Mutual of Omaha Ins. Co., 235 So. 2d 33 (Fla. 1st DCA 1970), the First District Court of Appeal reversed a trial court’s dismissal of an IIED claim and remanded for entry of judgment for the plaintiff where an insurance company attempted to dissuade an insured’s claim on a policy by insinuating that the insured was trying to defraud the insurer for coverage. Miller v. Mutual of Omaha Ins. Co., 235 So. 2d 33, 35 (Fla. 1st DCA 1970). In Miller, the insurance company had represented to the insured: “I have some bad news for you . . . [the company] is not going to pay your hospital . . . You knew good and well that you had that when you taken out [sic] the policy. . .” Id. The company agent said “real loud and snotty like” something like “What do you think you are trying to pull . . . There have been other people around here that tried to pull the same thing, but they didn’t get by with it.” Id. The Miller court held that in these circumstances, IIED became a question of fact that should have gone before the jury. Id. at 36.
Likewise, in Dominguez v. Equitable Life Assur. Soc. of U.S., 438 So. 2d 58 (Fla. 3d DCA 1983), the Third District Court of Appeal held that a plaintiff stated a cause of action for IIED against an insurance company where an insurance agent went to the home of an insured and falsely represented that the insured’s previous optical disability was gone; that he was no longer totally disabled and therefore no longer covered by the insurance policy; that the policy was no longer in force; that the insured had to sign a paper agreeing that no further payments were due under the policy and he was no longer entitled to receive benefits under it; and that the insured was giving up the policy voluntarily. Dominguez v. Equitable Life Assur. Soc. of U.S., 438 So. 2d 58, 61 (Fla. 3d DCA 1983). The insured plaintiff alleged that the insurance agent knew the representations were false and made them with the intent to get him to surrender the subject policy; the insurance agent knew the client was entitled to benefits under the policy. Id. The Court held: “The foregoing acts were all in violation of their fiduciary relationship and duty of good faith and in an effort to use their superior knowledge, skill, and position to take advantage of this debilitated Plaintiff. A relative of Plaintiff overheard and intervened at the last minute and prevented Plaintiff from signing the paper and surrendering the policy.” Id. These allegations sufficed to state an IIED cause of action.
Other examples of upheld causes of action for IIED in this category include Singleton v. Foreman, 435 F. 2d 962 (5th Cir. 1970) (wherein an attorney acted maliciously toward a client when he verbally abused her upon her indicated desire to settle her divorce action, refused to allow her to settle, and threatened to ruin both the client and her husband; the attorney had also taken the client’s jewelry and attempted to take her coat for security for his fee), and Stinson v. Feminist Women’s Health Care, Inc., 416 So. 2d 1183 (Fla. 1st DCA 1982) (wherein attorneys acted maliciously toward their clients where they “obfuscated, manipulated and deceived their clients in a tortious attempt to take all of the settlement money”).
IIED for intentional distress of families
Florida law provides an intentional infliction of severe emotional distress cause of action where a defendant intentionally causes emotional distress of families by misrepresenting the status of a family member’s legal status, location, or health in reckless disregard of the effect on a listener family member, or where a defendant mishandles situations after a family member’s death. For example, in Stewart v. Walker, 5 So. 3d 746 (Fla. 4th DCA 2009), the Fourth District Court of Appeal reversed a trial court’s dismissal of an IIED claim where a mother moved a child from Florida to Massachusetts after birth without the biological father’s consent, and then filed a complaint to establish paternity in a Massachusetts court. Stewart v. Walker, 5 So. 3d 746, 749 (Fla. 4th DCA 2009).
In Kirksey v. Jernigan, 45 So. 2d 188 (Fla. 1950), the Florida Supreme Court held that a complaint stated a cause of action for IIED where the plaintiff alleged that after her child passed away an unauthorized undertaker took the body and refused to turn it over to the mother until she paid him $50, holding the body as security, interfering with the testamentary disposition of the body. Kirksey v. Jernigan, 45 So. 2d 188, 189–90 (Fla. 1950).
In Dowling v. Blue Cross of Fla., Inc., 338 So. 2d 88 (Fla. 1st DCA 1976), the First District Court of Appeal explained that the right to recover for IIED in tortious interference with rights involving a deceased family member hinges on the concept that “mental anguish to the surviving relatives is not only the natural and probable consequence of the character of wrong committed, but indeed frequently the only injurious consequence to follow from it.” Dowling v. Blue Cross of Fla., Inc., 338 So. 2d 88, 89 (Fla. 1st DCA 1976).
Other examples include Ford Motor Credit Co. v. Sheehan, 373 So. 2d 956 (Fla. 1st DCA 1979), in which the appellate court affirmed a verdict assessing damages for IIED where a company misrepresented the health of a family member as a ploy to locate them for debt collection, and that misrepresentation set into motion communication resulting in a family member’s severe emotional distress. Ford Motor Credit Co. v. Sheehan, 373 So. 2d 956, 958 (Fla. 1st DCA 1979). In Armstrong v. H & C Communications, Inc., 575 So. 2d 280 (Fla. 5th DCA 1991), the Fifth District Court of Appeal reversed a trial court’s dismissal of an IIED claim against a new channel where the news channel had aired footage of the remnants of a deceased child, later viewed by the deceased’s family. Armstrong v. H & C Communications, Inc., 575 So. 2d 280, 281 (Fla. 5th DCA 1991). The news channel had abused the emotional story of the deceased’s family for sensationalism and financial gain. Id. The Armstrong court held that it had “no difficulty in concluding that reasonable persons in the community could find that the alleged conduct of Channel 2 was outrageous in character and exceed the bounds of decency so as to be intolerable in a civilized community.” Id. at 282.
Compare other appellate decisions involving adult employee gripes for employer mistreatment, rather than IIED
Several appellate court decisions have illustrated that adult (non-juvenile) employer-employee disputes may not qualify as the type of outrageous situation required for intentional infliction of severe emotional distress. The appellate courts held that the underlying facts in these adult employment dispute cases did not cross the threshold of IIED because they involved circumstances that were covered by Florida’s statutory protections for discrimination in the workplace and because they involved adult-to-adult use “of mere vulgarities, obviously intended as meaningless abusive expressions . . . [rather than] allegations showing that the words were intended to have real meaning or serious effect.” Slocum v. Food Fair Stores of Fla., Inc., 100 So. 2d 396, 398 (Fla. 1958).
For example, in Williams v. Worldwide Flight SVCS., Inc., 877 So. 2d 869 (Fla. 3d DCA 2004), a defendant boss used racial slurs against his plaintiff employee during the course of work. Williams, 877 So. 2d at 870. In determining that a boss’s abusive language towards his employee did not sustain an IIED claim, the Third District Court of Appeal stated:
“This Court notes the number of state and federal remedies available to individuals who claim that they have been discriminated against in the workplace on the basis of their race. [The plaintiff] could have pursued any of these remedies, and instead elected not to do so. . . . We therefore affirm the dismissal of the claim for [IIED].”
Id. at 871. Given these statutory protections for employees, the appellate court discussed that a boss’s malfeasance would have to be threats of violence or sexual contact that sufficed the impact rule to cross into IIED. Id. at 870.
Other Florida appellate decisions have provided this same type of leniency for employer-employee disputes only. See Lay v. Roux Laboratories, Inc., 379 So. 2d 451, 453 (Fla. 1st DCA 1980) (holding a boss using name-calling in an argument with his employee over a parking space was not enough for IIED because mere vulgarities and abusive language are commonplace when tempers flare, and therefore alone cannot sustain a cause of action for IIED); Dowling v. Blue Cross of Fla., Inc., 338 So. 2d 88, 89 (Fla. 1st DCA 1976) (holding boss’s allegation that employee had sex at work not enough for IIED because it lacks the intent and outrageousness of character for IIED); American Fed. Of Gov’t Employees v. DeGrio, 454 So. 2d 632, 638 (Fla. 3d DCA 1984) (union representative’s failure to personally appear before the Civil Service Commission to appeal the employee’s termination did not rise to the level of IIED).
However, these cases are inapplicable where a plaintiff alleges IIED upon a child or upon a family, or by a company abusing its power, position of trust, and fiduciary duty for financial gain. In these three instances, if they involve underlying facts that would cause an average member of the community to exclaim “Outrageous!”, a court should sustain a cause of action for intentional infliction of severe emotional distress under Florida law.