United States District Court, M.D. Florida, Tampa Division
DANIEL K. FAUROTE and EDA M. SMITH, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
Charlene Edwards Honeywell United States District Judge.
matter comes before the Court upon the Defendant's Motion
to Dismiss (Doc. 6) and Plaintiffs' response in
opposition (Doc. 14). In the motion, Defendant contends that
the Court should dismiss the Complaint because the
Plaintiffs' allegations do not satisfy the Florida impact
rule for emotional distress claims. The Court, having
considered the motion and being fully advised in the
premises, will grant Defendant's Motion to Dismiss, in
STATEMENT OF FACTS 
K. Faroute and Eda M. Smith live together in Pasco County,
Florida. Doc. 1 at ¶ 6. On July 7, 2016, Faroute
received surgical treatment at the Tampa Veteran's
Administration Medical Center (the “Tampa VA”)
for obstructive sleep apnea. Id. at ¶ 13. A
month after the procedure, Faroute and Smith had a meeting at
the Tampa VA. Id. at ¶ 14. The Tampa VA's
chief of staff told Faroute that the medical staff used
instruments in his procedure that did not satisfy all Tampa
VA sterilization requirements. Id. Two of the three
indicator strips on the instrument tray indicated that the
tray did not reach the temperature and pressure levels
required for proper sterilization. Doc. 1-1 at 3. Faroute and
Smith received routine blood testing to ensure that neither
had contracted HIV or hepatitis as a result of the incident.
Doc. 1 at ¶ 16. Plaintiffs do not allege that either has
contracted HIV or hepatitis. See id. at ¶¶
15, 16. Faroute and Smith have a sexual relationship which
created a risk of exposure to Smith. Doc. 1-1 at 2.
Plaintiffs sue for negligence and demand $500, 000 in damages
for pain and suffering and loss of enjoyment of life.
survive a motion to dismiss, a pleading must include a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P.
8(a)(2)). Labels, conclusions and formulaic recitations of
the elements of a cause of action are not sufficient.
Id. (citing Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555, (2007)). Furthermore, mere naked
assertions are not sufficient. Id. A complaint must
contain sufficient factual matter, which, if accepted as
true, would “state a claim to relief that is plausible
on its face.” Id. (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citation
omitted). The court, however, is not bound to accept as true
a legal conclusion stated as a “factual
allegation” in the complaint. Id.
United States argues that the impact rule bars
Plaintiffs' recovery. Specifically, because the alleged
injury derives from Defendant's disclosure that the
surgical tools were not properly sterilized as opposed to the
surgery itself, it argues that the emotional distress does
not flow from an impact. The United States relies on R.J.
v. Humana of Fla., Inc., 652 So.2d 360 (Fla. 1995) for
the proposition that Florida law requires a physical impact
from a negligent act to sustain a claim for emotional
distress. Plaintiffs argue that the alleged negligence is the
failure to sterilize the surgical tools, not the disclosure,
and therefore Faroute's physical contact during the
surgery is sufficient to satisfy the impact rule;
R.J. is distinguishable; Smith's sexual contact
with Faroute and blood testing satisfies the physical impact
rule; and the Complaint otherwise states a proper claim for
federal law, the United States is liable for personal injury
caused by the negligence of a government employee
“under circumstances where the United States, if a
private person, would be liable to the claimant in accordance
with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b). Plaintiffs allege
negligence at the Tampa VA implicating Florida law.
version of the impact rule bars a claim for mental or
emotional damages caused by a defendant's negligence
unless: (1) the plaintiff sustained a physical impact from an
external source; (2) the claim arises from a situation in
which the “impact” requirement is relaxed and the
plaintiff manifests a significant discernible physical injury
or illness as a result of the emotional trauma; or (3) one of
the narrow exceptions to the impact rule applies rendering
the rule inapplicable. Fla. Dep't of Corr. v.
Abril, 969 So.2d 201, 206 (Fla. 2007) (per curiam);
Willis v. Gami Golden Glades, LLC, 967 So.2d 846,
850 (Fla. 2007) (per curiam); Gracey v. Eaker, 837
So.2d 348, 355 (Fla. 2002).
Willis, the Florida Supreme Court clarified that no
physical injury is necessary to overcome the impact rule
where the plaintiff sustains “an impact or
touching.” 967 So.2d at 850 (“When an impact or
touching has occurred the rule has no application.”).
“The essence of impact...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 plaintiff's
body.” Id. (quoting Eagle-Picher Indus.,
Inc. v. Cox, 481 So.2d 517, 527 (Fla. 3d DCA 1985)). In
the absence of an impact and in limited situations “the
manifestation of severe emotional distress such as physical
injuries or illness” may suffice to sustain a claim for
emotional distress. Abril, 969 So.2d at 205. Florida
courts have identified a few narrow exceptions to the impact
rule, such as intentional torts, certain “freestanding
torts, ” and breaches of the duty of confidentiality as
to the release of sensitive personal information.
Id. at 206.
United States argues that the surgery itself is not an
“impact” because at the time that the tools
touched Faroute, he did not know they were potentially
contaminated. It also argues that the blood testing was not
an “impact” because it involved ordinary touching
and testing by a doctor. It states that to “permit
liability for fear alone encourages inherently speculative,
intangible claims and renders nearly impossible the defense
of those claims.” Doc. 6 at 5 (citing R.J.,
652 So.2d at 362-63).
alleged in the complaint, the negligent act was the improper
sterilization of the surgical tools, which caused trauma to
Faroute upon notification of this failure to properly
sterilize. The physical contact flows from the alleged
negligent conduct. Thus Faroute has set forth sufficient
allegations to demonstrate a slight “impact” to
proceed with his case, at this stage of the litigation.
claim is similar to the plaintiffs' claims in
Alvarado v. U.S., 10-22788-CIV, 2010 WL 11553432, at
*1 (S.D. Fla. Oct. 15, 2010). There, the plaintiffs argued
that they suffered damages from the “negligent
infliction of emotional distress that occurred when
Plaintiffs learned that they were at a potential risk of
having various diseases as a result of colonoscopies
performed at a veterans' hospital operated by the
Veteran's Administration[.]” Id. The
defendant, relying on R.J., argued that the letter
informing the plaintiffs of their potential risk caused the
plaintiffs' distress. Therefore, it argued, the operation
was not an “impact” for purposes of the impact
rule. Id. at *3. The court held that R.J.
was distinguishable in that the negligence alleged in
R.J. related to the testing in a laboratory miles
away and not in ...