The Florida Anti‑SLAPP Project
Fighting Those Who Seek To Suppress Free Speech
(Established May 28, 2017)
By: D.T. Colen / FASP Founder
Last Updated: Monday, May 1, 2017
Last Updated: Monday, May 1, 2017
Florida Law: Intentional Infliction Of Emotional Distress
Fret not if the SLAPP you've been served in the State of Florida includes an additional count of Intentional Infliction of Emotional Distress (IIED).
If all you've done is write a review of a local business, or report the facts surrounding an event or about someone, there is an incredibly miniscule chance the plaintiff's complaint will meet the requirements for a valid claim of IIED.
Just like tortious interference, which is explained in some detail on a separate page of this website, an allegation of IIED in connection with an action for defamation is, in all likelihood, just a scare tactic, an act of intimidation, on the part of the plaintiff's attorney.
A rather obvious and pathetic one at that.
Any count of IIED in Florida, for starters, must meet the state's "impact rule," which decrees plaintiffs making such a claim are required to allege and prove the defendant initiated some consequential physical contact with the plaintiff.
Or, in the absence of actual contact, there must have been a physical manifestation of an emotional injury.
So unless you punched or kicked or slapped the plaintiff, or ran over him with your car, for example, before you made the alleged defamatory statements, then he will not be able to meet this critical aspect of Florida's impact rule.
In the alternative, without an impact, the plaintiff would have to prove your false statements were so damaging that they caused severe enough emotional trauma that a physical injury resulted.
Moreover, to be valid, every allegation of IIED in Florida must demonstrate "a close personal relationship" between the plaintiff and the defendant ‑‑ regardless of the occurrence of an impact.
It should be apparent by now that only the most immoral, unethical, dunderheaded attorney would try pulling off a stunt like adding an allegation of IIED to a defamation action.
Shamefully, though, it happens. It's happening to me right now. The same attorney who is suing me for defamation in connection with websites that aren't even mine added IIED to his complaint.
I never said the kid was Clarence Darrow.
But, wait, there's actually more.
Not only must that aforementioned impact rule be met, but Florida also requires the conduct that gave rise to any IIED allegation be capable of being deemed "outrageous" by an "average member of the community," and Florida's appellate courts have decreed speech can never rise to the standard of outrageousness.
One final reminder. Individuals are the only ones in the State of Florida who are allowed to sue for IIED. Be that as it may, there are still attorneys out there, shockingly, attorneys in good standing with the bar, who either are completely unaware of this provision, or so anxious to affix their name to any lawsuit, no matter how absurd, that they will try to allege IIED on behalf of a company.
(That very same attorney who is suing me in connection with websites that aren't even mine is also alleging IIED on behalf of a corporation).
Now, here's the case law you'll need to include in your Motion To Dismiss any unfounded allegations of IIED. Be sure to print out copies of the case law for both the judge and opposing counsel at your hearing.
Zell v. Meek, 665 So.2d 1048 (Fla. 1995):
"The four requirements for a valid claim of intentional infliction of emotional distress are: 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."
Willis v. Gami Golden Glades, LLC, 967 So. 2d 846 (Fla. 2007) citing Ruttger Hotel Corp. v. Wagner 691 So.2d 1177 (Fla. Dist. Ct. App. 1997):
"The impact doctrine precludes recovery for injuries caused by a defendant's negligence in the absence of physical impact to the claimant."
Jews For Jesus Inc. v. Edith Rapp Florida Supreme Court (No. SC06-2491; Decided: October 23, 2008):
"Classification of speech as 'outrageous' for suits for intentional infliction of emotional distress does not provide a meaningful standard, and would allow jury to impose damages on the basis of the jurors' tastes or views."
Food Fair, Inc. v. Anderson, 382 So. 2d 150, 153 (Fla. 5th DCA 1980):
"For conduct to meet this extraordinary threshold, it must be regarded as atrocious and utterly intolerable in a civilized community. Generally, the 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'"
If all you've done is write a review of a local business, or report the facts surrounding an event or about someone, there is an incredibly miniscule chance the plaintiff's complaint will meet the requirements for a valid claim of IIED.
Just like tortious interference, which is explained in some detail on a separate page of this website, an allegation of IIED in connection with an action for defamation is, in all likelihood, just a scare tactic, an act of intimidation, on the part of the plaintiff's attorney.
A rather obvious and pathetic one at that.
Any count of IIED in Florida, for starters, must meet the state's "impact rule," which decrees plaintiffs making such a claim are required to allege and prove the defendant initiated some consequential physical contact with the plaintiff.
Or, in the absence of actual contact, there must have been a physical manifestation of an emotional injury.
So unless you punched or kicked or slapped the plaintiff, or ran over him with your car, for example, before you made the alleged defamatory statements, then he will not be able to meet this critical aspect of Florida's impact rule.
In the alternative, without an impact, the plaintiff would have to prove your false statements were so damaging that they caused severe enough emotional trauma that a physical injury resulted.
Moreover, to be valid, every allegation of IIED in Florida must demonstrate "a close personal relationship" between the plaintiff and the defendant ‑‑ regardless of the occurrence of an impact.
It should be apparent by now that only the most immoral, unethical, dunderheaded attorney would try pulling off a stunt like adding an allegation of IIED to a defamation action.
Shamefully, though, it happens. It's happening to me right now. The same attorney who is suing me for defamation in connection with websites that aren't even mine added IIED to his complaint.
I never said the kid was Clarence Darrow.
But, wait, there's actually more.
Not only must that aforementioned impact rule be met, but Florida also requires the conduct that gave rise to any IIED allegation be capable of being deemed "outrageous" by an "average member of the community," and Florida's appellate courts have decreed speech can never rise to the standard of outrageousness.
One final reminder. Individuals are the only ones in the State of Florida who are allowed to sue for IIED. Be that as it may, there are still attorneys out there, shockingly, attorneys in good standing with the bar, who either are completely unaware of this provision, or so anxious to affix their name to any lawsuit, no matter how absurd, that they will try to allege IIED on behalf of a company.
(That very same attorney who is suing me in connection with websites that aren't even mine is also alleging IIED on behalf of a corporation).
Now, here's the case law you'll need to include in your Motion To Dismiss any unfounded allegations of IIED. Be sure to print out copies of the case law for both the judge and opposing counsel at your hearing.
Zell v. Meek, 665 So.2d 1048 (Fla. 1995):
"The four requirements for a valid claim of intentional infliction of emotional distress are: 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."
Willis v. Gami Golden Glades, LLC, 967 So. 2d 846 (Fla. 2007) citing Ruttger Hotel Corp. v. Wagner 691 So.2d 1177 (Fla. Dist. Ct. App. 1997):
"The impact doctrine precludes recovery for injuries caused by a defendant's negligence in the absence of physical impact to the claimant."
Jews For Jesus Inc. v. Edith Rapp Florida Supreme Court (No. SC06-2491; Decided: October 23, 2008):
"Classification of speech as 'outrageous' for suits for intentional infliction of emotional distress does not provide a meaningful standard, and would allow jury to impose damages on the basis of the jurors' tastes or views."
Food Fair, Inc. v. Anderson, 382 So. 2d 150, 153 (Fla. 5th DCA 1980):
"For conduct to meet this extraordinary threshold, it must be regarded as atrocious and utterly intolerable in a civilized community. Generally, the 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'"