Marjorie WILLIS, et vir., Petitioners, v. GAMI GOLDEN GLADES, LLC., etc., et al., Respondents, 967 So. 2d 846

PER CURIAM. We have for review a decision of a district court of appeal on the following questions, which -the court certified to be of great public importance: 1. IS THE EVIDENCE THAT THE PLAINTIFF WAS TOUCHED AGAINST HER WILL BY THE PISTOL PLACED TO HER HEAD AND IN “PATTING DOWN” HER BODY SUFFICIENT TO SATISFY THE FLORIDA IMPACT RULE? SEE AND COMPARE, E.G, GRACEY V. EAKER, 837 So.2d 348, 355 (Fla.2002); ZELL V. MEEK, 665 So.2d 1048 (Fla.1995); EAGLE-PICHER INDUSTRIES, INC. V. COX, 481 So.2d 517 (Fla. 3D DCA 1985), REVIEW DENIED, 492 So.2d 1331 (Fla.1986). 2.

IS THE EVIDENCE THAT THE PLAINTIFF WAS APPARENTLY THE OBJECT OF AN ASSAULT AND MULTIPLE BATTERIES SUFFICIENT TO SATISFY A “FREE STANDING TORT” EXCEPTION TO THE IMPACT RULE WHICH MAY EXIST IN FLORIDA? SEE KUSH V. LLOYD, 616 So.2d 415 (Fla.1992). 3. IS THE INNKEEPER-GUEST RELATIONSHIP INVOLVED IN THIS CASE A “SPECIAL RELATIONSHIP” UNDER AN EXCEPTION TO THE IMPACT RULE WHICH MAY EXIST IN FLORIDA? ROWELL V. HOLT, 850 So.2d 474 (Fla.2003); GRACEY V. EAKER, 837 So.2d 348 (Fla.2002). 4. SHOULD THE IMPACT RULE BE ABOLISHED? Willis v. Gami Golden Glades, LLC, 881 So.2d 703, 705-06 (Fla. 3d DCA 2004) (footnote omitted).

We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The instant action comes for review after the Third District Court of Appeal has affirmed a final

summary judgment in favor of the defendants/respondents, Garni Golden Glades, LLC (hereinafter “Garni”) and American Knights Security, Inc. (hereinafter “American Security”). See Willis v. Gami Golden Glades, LLC, 881 So.2d 703 (Fla. 3d DCA 2004). In affirming the

summary judgment, the district court held that Florida’s impact rule precluded plaintiffs/petitioners (hereinafter “the Willises”) from recovering for severe psychological damage allegedly suffered by Marjorie Willis (hereinafter “Mrs. Willis”) as a result of the negligence of the defendants/respondents in failing to exercise reasonable care to protect her from foreseeable criminal action. See id. at 704. Procedural rules require that the facts be viewed most favorably to Mrs. Willis in the review of this

summary final judgment. 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 facts developed below establish that Mrs. Willis was a guest at a Holiday Inn hotel owned by Garni which had contracted for security services with American Security. See id. When Mrs. Willis arrived at the Holiday Inn for her stay, there were no parking spaces available in the hotel parking lot immediately adjacent to the hotel structure. See id. A security guard specifically instructed her to park her vehicle in a parking lot across the street, and when Mrs.

Willis expressed concern because the lot was dark and the neighborhood unfamiliar, the guard assured her that it was “safe to park next door” and instructed that she park there. See id. The guard refused any further assistance, to park the ear for her, or to even watch for her as she moved to the location designated. See id. Instead, the guard continued to insist that the area was safe, emphasized its safe and secure location, and directed that she move her car across the street. See id. After Mrs.

Willis proceeded to park her vehicle across the street in the location directed by the guard and opened the car door, a gun was placed to her head as she began to exit the vehicle. See id. She stepped out of the car with her pocketbook on her arm as the gunman ordered that she empty her pockets. See id. During this confrontation, the gunman placed the gun to Mrs. Willis’s head and she heard the gun click as if firing. See id. She attempted to move but was unable to do so. See id. As she attempted to walk away, the gunman used the weapon to wave her back to the car. See id.

As he made this motion, and issued additional demands, she thought she was facing death. See id. The assailant then demanded that Mrs. Willis lift her clothing and as she did so, he proceeded to place his hands on her, patting down her exposed body. See id. After the gunman had stolen her rental car and driven off, the security guard refused to provide assistance to Mrs. Willis. See id. The guard attempted to act as though he had never seen her. See id. Mrs. Willis found no greater help from the hotel personnel inside the facility. See id. Mrs.

Willis experienced a sleepless night in the Holiday Inn hotel room she shared with her friend, walking the floor in “agony” and “scared.” See id. at 704-05. The next day, Mrs. Willis was seen in a local emergency room. See id. at 705. Since that time, she has been under the care and treatment of a psychiatrist and a psychologist, as well as her general practitioner, for anxiety, depression, panic attacks and posttraumatic stress disorder. See id. She has been on medication, including Paxil, Buspar, Wellbutrin and Zoloft. See id.

She is afraid everywhere she goes; her relationship with her husband has deteriorated. See id. Her life is simply nothing like it was before this frightening experience. See id. As a direct result of this encounter, the treating psychologist described the following physical manifestations of injuries resulting from the attack: (1) sexual dysfunction; (2) peripheral temperature changes; (3) muscle tightening; and (4) increased sweat gland activity. See id. This medical evidence remains uncontradicted. See id. The defendants simply assert that the “impact rule” precludes this action. See id.

The courts below accepted the defendants’ argument and we now review the issues presented and questions certified. The affirmance by the Third District below of the final

summary judgment was logically based on its prior opinion in Ruttger Hotel Corp. v. Wagner, 691 So.2d 1177 (Fla. 3d DCA 1997), which the district court found “almost uncanny in its resemblance to the controlling facts of this case.” Willis, 881 So.2d at 705. However, “[i]n light of the continuing uncertainty as to the content, scope, and wisdom of the Florida impact rule,” id. at 705, the district court certified the above-quoted questions to this Court as ones involving matters of great public importance. See id. at 705-06. This has generated our review today.

Based on the analysis set forth below, we answer the first certified question in the affirmative, quash the Third District’s decision in this case, and disapprove Ruttger Hotel Coyp. v. Wagner, 691 So.2d 1177 (Fla. 3d DCA 1997). Based upon our answer to the first certified question, we decline to answer the remaining certified questions as we quash the district court’s decision below and remand the case for proceedings consistent with this opinion.

ANALYSIS The application of the “impact rule” in Florida reflects a dichotomy under the law for cases in which the plaintiff is claiming damages for mental pain and anguish. This dichotomy and controlling law. was aptly described by the Third District Court of Appeal in Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517 (Fla. 3d DCA 1985), which was noted with approval by this Court in Zell v.

Meek, 665 So.2d 1048, 1050 n. 1 (Fla.1995): In Florida, the prerequisites for recovery for negligent infliction of emotional distress differ depending on whether the plaintiff has or has not suffered a physical impact from an external force. If the plaintiff has suffered an impact, Florida courts permit recovery for emotional distress stemming from the incident during which the impact occurred, and not merely the impact itself.

If, however, the plaintiff has not suffered an impact, the complained-of mental distress must be “manifested by physical injury,” the plaintiff must be “involved” in the incident by seeing, hearing, or arriving on the scene as the traumatizing event occurs, and the plaintiff must suffer the complained-of mental distress and accompanying physical impairment “within a short time” of the incident. Eagle-Picher Indus., Inc., 481 So.2d at 526 (citation omitted); see also Hagan v.

Coca-Cola Bottling Co., 804 So.2d 1234, 1239. (Fla.2001) (recognizing dichotomy by holding that physical injury is not required where impact occurs by ingestion of food containing a foreign substance because impact rule is inapplicable as ingestion qualifies as the impact); Zell, 665 So.2d at 1050, 1052 (recognizing that a causé of action for psychological trauma exists in Florida in cases involving “some physical impact to a claimant” or in cases “where psychological trauma could be demonstrated to cause a demonstrable physical injury”).

The impact rule is the rule of law followed in Florida applicable to cases in which the plaintiff claims mental or emotional damages but has not sustained any physical impact or contact, unless the claim falls within one of the recognized exceptions to the rule. When an impact or touching has occurred the rule has no application. We have previously stated that for a plaintiff to have endured an impact or contact sufficient to render an action sustainable the “plaintiff may meet rather slight requirements.” Zell, 665 So.2d at 1050 n. 1.

In so holding, we approved the Third District’s statement of the impact requirement in Eagle-Picher Industries, Inc. v. Cox, 481 So.2d 517 (Fla. 3d DCA 1985): The essence of'impact, then, it seems, is that the outside force or substance, no matter how large or small, visible or invisible, and no matter that the effects are not immediately deleterious, touch or enter into the plaintiffs body. Id. at 527, quoted with approval in Zell, 665 So.2d at 1050 n. 1. The Willises assert that the facts involved with the incident in this case establish that Mrs.

Willis sustained multiple types of contact sufficient to qualify as an impact giving rise to a valid cause of action for emotional distress. Viewing the facts in a light most favorable to the Willises as we must, see Moore, 475 So.2d at 668, we conclude that the position advanced by the Willises is correct. The deposition testimony of Mrs. Willis establishes that her assailant actually made contact with her left temple with his gun, and that the assailant also made actual physical contact with,Mrs.

Willis when he demanded that she lift her shirt and he then proceeded to touch her body in an apparent search for money or other belongings. Given our statements in Zell as to what constitutes sufficient physical contact to qualify as an “impact” for purposes of maintaining an action for emotional distress, we hold that the Willises’ claim more than satisfies that definition. See Zell, 665 So.2d at 1050 n. 1; see also Eagle-Picher Indus., Inc., 481 So.2d at 517.

CONCLUSION Based on the foregoing, we answer the first certified question in the affirmative, disapprove the Third District’s opinion and decision in Ruttger Hotel Corp. v. Wagner, 691 So.2d 1177 (Fla. 3d DCA 1997), and quash the district court’s decision below and remand the case for proceedings consistent with this opinion. It is so ordered. LEWIS, C.J., and ANSTEAD, PARIENTE, and QUINCE, JJ., concur. LEWIS, C.J., specially concurs with an opinion. PARIENTE, J., concurs with an opinion, in which ANSTEAD, J., concurs. QUINCE, J., concurs with an opinion, in which ANSTEAD and PARIENTE, JJ., concur.

WELLS, J., dissents with an opinion. CANTERO, J., dissents with an opinion, in which WELLS and BELL, JJ., concur. . The

summary judgment was entered in favor of the defendants and, therefore, the district court appropriately considered the facts as presented by the appellants, concluding that they “fairly describe[d] the record evidence in the required light most favorable to [the plaintiffs'] position.” Willis, 881 So.2d at 704.