Cynda Futch and Willie Futch, her husband, plaintiffs in the trial court, raise one issue on appeal: whether the trial court erroneously granted summary judgment in favor of appellee, Wal-Mart Stores, Inc., based on the impact rule. The trial court granted summary judgment based on lack of physical injury. The affidavit of Mrs. Futch, filed in opposition to the motion for summary judgment, however, raised issues of material fact regarding whether she had been touched. Under these circumstances, reversal is mandated. See Willis v. Gami Golden Glades, LLC, 967 So.2d 846 (Fla.2007).
Cynda Futch and Willie Futch filed a two-count complaint on January 20, 2006, following the abduction of Cynda Futch from the Wal-Mart parking lot on November 22, 2002. Count I sought damages for negligent infliction of emotional distress caused by appellee's alleged negligence in failing to provide reasonable security. Count II sought damages for loss of consortium resulting from the negligent infliction of emotional distress.
Wal-Mart Stores, Inc., the defendant in the trial court, filed an amended motion for summary judgment asserting that appellants were barred from recovery based on Florida's impact rule.
Appellant testified at deposition that she was employed by Wal-Mart when the abduction occurred after she finished her shift at 8 p.m. Appellant stated that she requested and was denied an escort to her vehicle prior to leaving the store. Appellant further explained that she was walking out to her pickup truck when she was abducted at gunpoint by two assailants in the parking lot. It was later discovered that the gun was fake. In her answers to interrogatories appellant stated the following:
During the 4-hour drive, appellant stated that she first drove and then sat in her truck between the assailants. Appellant was eventually released at a Waffle House several hours from her home, where she had to wait to be picked up by her husband.
Appellant stated in her deposition that she could not remember whether she had been "physically touched" by the assailants. The following statements were made during appellant's deposition:
Appellant filed a sworn affidavit in opposition to Wal-Mart's request for summary judgment. In the affidavit, she indicated that, while she had not been physically injured during the abduction, she had in fact been physically touched by her assailants. Specifically, the affidavit stated:
Following arguments on the motion for summary judgment, the trial court entered an order granting the motion in favor of appellee stating in pertinent part:
In reviewing an order granting final summary judgment by the trial court, this court applies the de novo standard of review to determine whether there are genuine issues of material fact and whether the trial court properly applied the correct rule of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000). A summary judgment is appropriate only when there is not the slightest doubt as to any issue of material fact. Aloff v. Neff-Harmon, Inc., 463 So.2d 291, 294 (Fla. 1st DCA 1984). The facts must be viewed most favorably to appellant. See Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) ("The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought."). The Moore opinion further states:
The court will look at any affidavits, answers to interrogatories, admissions, depositions, and other materials, as would be admissible in evidence. See Fla. R. Civ. P. 1.510(c).
In this case, the Ellison rule does not apply because it has not been shown that appellant's affidavit directly contradicts her deposition testimony. Even if we were to find the statements were contradictory, the affidavit should not be stricken from the record. Appellant provided a credible explanation for the discrepancy in her affidavit when she explained that she misunderstood the word "touched" to mean assault or sexual touching, not merely physical contact. The affidavit supports this explanation by pointing out appellant's statements in her interrogatory answers which logically imply that contact occurred between appellant and her assailants.
As to the impact rule, the trial court erred in focusing on whether physical injury occurred as opposed to considering whether issues of material fact existed concerning whether Mrs. Futch had been touched during her abduction.
Originally, Florida courts barred claims for damages resulting from negligent infliction of emotional distress unless some physical injury had been inflicted and the mental injury was so connected that is was not severable from the physical injury. Int'l Ocean Tel. Co. v. Saunders, 32 Fla. 434, 454, 14 So. 148 (Fla.1893). This rule has become known as the "impact rule." However, courts have gradually diminished the impact rule's applicability by creating exceptions to the rule or applying the rule less strictly. See Fla. Dep't of Corr. v. Abril, 969 So.2d 201 (Fla.2007); Rowell v. Holt, 850 So.2d 474 (Fla.2003); Gracey v. Eaker, 837 So.2d 348 (Fla.2002); Hagan v. Coca-Cola Bottling Co., 804 So.2d 1234 (Fla.2001); Zell v. Meek, 665 So.2d 1048 (Fla.1995); Kush v. Lloyd, 616 So.2d 415 (Fla.1992).
Since the filing of this appeal, the Florida Supreme Court took the opportunity to address the status and application of the impact rule in Willis and confirmed that the impact rule only bars cases in which the plaintiff claims mental or emotional injury but has not sustained any physical contact. Willis, 967 So.2d at 850. In Willis, a hotel guest brought a negligence action against a hotel owner for psychological damage allegedly suffered after she was robbed and assaulted at gunpoint while parking her car across the street as directed by hotel security. The testimony of the plaintiff established that her assailant made contact with her left temple with his gun and made other physical contact when he searched her body for money and
This holding reiterated that, for a plaintiff to have endured a contact sufficient to render an action sustainable, the plaintiff need meet only slight requirements. Id. The Willis court once again quoted with approval the holding in Eagle-Picher Industries, Inc. v. Cox which stated:
Id. (quoting Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517, 527 (Fla. 3d DCA 1985)).
Because Mrs. Futch's affidavit raised issues of fact as to the applicability of the impact rule, we reverse the summary judgment and remand for further proceedings.
THOMAS and ROBERTS, JJ., concur.