Third District Court of Appeals Vacates Jury Verdict in South Florida Peeping Tom Case

Florida is among many states that apply the “impact rule” in tort litigation. Generally, the impact rule provides that “a plaintiff can recover damages for emotional distress caused by the negligence of another” only if “the emotional distress suffered . . . flow[s] from physical injuries the plaintiff sustained in an impact.” Fla. Dep’t of Corrs. v. Abril, 969 So. 2d 201, 206 (Fla. 2007). Although there are many exceptions to the application of the impact rule, this limitation on recovery for emotional damages leads to considerable chagrin among many litigants in Florida courts. For instance, in a recent decision, G4S Secure Solutions USA, Inc. v. Golzar, the Third District Court of Appeal foreclosed the recovery of emotional damages in a case involving a Peeping Tom employed as a security guard at a South Florida residential community.

The defendant in this action, G4S Secure Solutions USA, Inc. (“Wackenhut”), provides private security services throughout the United States. Around November 2008, Wackenhut hired the security officer who performed in the aforementioned peeping incident at the heart of this case. At the time of the security officer’s hiring, Wackenhut performed an investigation of the security officer’s background and uncovered a California misdemeanor conviction for disorderly conduct in 2004. Although the security officer had not disclosed the incident on his application, Wackenhut chose not to investigate the incident further. It was later revealed that the specific conduct for which the security officer was convicted under California’s disorderly conduct statute was prowling and peeking into an inhabited building.

In 2010, this security officer was assigned to Old Cutler Bay, a residential community in southern Miami-Dade County. At around 3 a.m. on August 15, 2010, the security officer was patrolling Old Cutler Bay and used his cell phone to record the plaintiff in this case, who was in her senior year of high school at the time, through her bedroom window. During the filming, the plaintiff noticed a hand against her window, which caused her to bang the window and alert others in the home of the incident. The security guard returned to the guardhouse, and shortly thereafter, one of the plaintiffs’ friends came to the guardhouse to report the incident. The security guard returned to the home under the pretense of investigating the incident, stated that he saw the purported prowler, and reported the incident to the police. However, after the police failed to come to the plaintiff’s home, the plaintiff’s mother called the police directly. The police informed the plaintiff’s mother that they had not been informed of the incident and reported to the scene. During their investigation, the police found the guard’s phone, which he had hidden at a retaining wall near his car. Some time thereafter, the guard reported to the local police station, where he confessed to the filming.

Following this incident, the plaintiff brought suit against Wackenhut, alleging negligent hiring, training, and retention claims and seeking compensatory and punitive damages. The crux of the plaintiff’s claims was that Wackenhut should have known of the peeking and prowling nature of the security officer’s conviction and therefore was negligent in hiring and retaining him as a security officer at a residential community. The case proceeded to trial, at which the plaintiff was ultimately victorious and was awarded more than $1.3 million in damages. At trial, the plaintiff did not, however, disclose any specific physical injury she incurred as a result of the incident or describe any deleterious physical effects that flowed from whatever emotional damages she suffered. At both summary judgment and at trial, Wackenhut moved for judgment as a matter of law, arguing that the plaintiff’s claims failed, for she had not shown any impact. The trial court denied both motions, and following the favorable verdict for the plaintiff, the defendant brought an appeal.

As mentioned before, Florida law provides that one may not recover non-economic emotional damages in the absence of impact. Abril, 969 So. 2d at 206. Direct impact, however, is not necessary when the emotional damages lead to “the manifestation of severe emotional distress,” causing “physical injuries or illness.” Id. In light of this foregoing limitation on damages, the Third District Court of Appeal found that the plaintiff’s claims for negligent hiring, training, and retention failed because the plaintiff could not recover purely non-economic emotional distress damages. First, the court noted that both Florida state and federal courts had precluded recovery for this variety of torts when the evidence only supported the existence of non-economic emotional damages. See, e.g., Resley v. Ritz-Carlton Hotel Co., 989 F. Supp. 1442, 1449 (M.D. Fla. 1997) (granting summary judgment on negligent retention claim when plaintiff failed to propound evidence demonstrating more than non-economic emotional damages); Miami-Dade Cnty. v. Cardoso, 922 So. 2d 301 (Fla. 3d DCA 2006) (remanding case for new trial on damages because original verdict included negligent training claims for which there was only recovery for non-economic emotional damages).

Notwithstanding this limitation, the plaintiff argued that her case fell within an exception to the impact rule because the only damages that could possibly be recovered in these circumstances were of the non-economic emotional variety. Specifically, the plaintiff relied on the Florida Supreme Court’s ruling in Abril, in which the court found that the impact rule did not apply to a violation of Florida’s HIV confidentiality statute because the only reasonably foreseeable damages for a violation of that statute were emotional distress damages. Abril, 969 So. 2d at 207-08. However,  unlike the HIV confidentiality statute, negligent hiring, training, and retention claims can foreseeably lead to a physical injury. See, e.g., Abbott v. Payne, 457 So. 2d 1156 (Fla. 4th DCA 1984) (reversing motion to dismiss because the plaintiff had sufficiently alleged a cause of action for negligent hiring against her former employer, who hired an individual who broke into the plaintiff’s home and physically assaulted her); Williams v. Feather Sound, Inc., 386 So. 2d 1238 (Fla. 2d DCA 1980) (reversing summary judgment based on evidence that condominium owner negligently hired a maintenance man who assaulted a tenant).

Furthermore, although the tort of invasion of privacy could reasonably be considered a tort for which the only recoverable damages would be non-economic emotional damages, see Gracey v. Eaker, 837 So. 2d 348, 356 (Fla. 2002), the Third District found that the conduct of the security officer and Wackenhut’s negligence in hiring him could not be merged, and the plaintiff had not otherwise shown a basis for vicarious liability. Indeed, unlike Abril, in which the Florida Department of Correction was, by virtue of a statute, vicariously viable for torts committed by its subcontractors, there was no such provision at issue here, and the plaintiff had not established a basis for making Wackenhut liable for an intentional tort an employee committed outside the scope of employment. Accordingly, since there was neither a demonstration of damages besides non-economic emotional damages nor a showing of a manifestation of a physical injury resulting from the emotional damages, the Third District found that there were no recoverable damages for the claims against Wackenhut and reversed the verdict.

As the foregoing discussion demonstrates, Florida’s impact rule is a meaningful limitation on recoverable damages in many tort actions. Accordingly, it is important for those with possibly meritorious tort claims to find counsel competent in the contours of not only the impact rule but also other facets of Florida negligence law. The South Florida negligent security attorneys at Frankl and Kominsky have represented many injured Florida residents, and they are prepared to offer you assistance with a possibly meritorious claim. Indeed, if you’ve recently been harmed by another party’s potential negligence and are curious about your legal options, feel free to contact us and schedule a complimentary case consultation.

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