Willis v. Gami Golden Glades, LLC (967 So. 2d 846, 2007)

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.

LEWIS, C.J.,

specially concurring.

Although I concur with the result of the majority today that the impact rule has no application in the instant case (and has never had application when touching has occurred) because Mrs. Willis did indeed sustain an impact to her person, I am compelled to specially concur because the analysis of the majority fails to address the many significant challenges that have been mounted by the dissenting opinions with regard to when and why the impact rule applies in certain cases involving mental distress and anguish. I am particularly concerned that while the dissenting opinions consume literally dozen of pages, those opinions fail to acknowledge even once the critical fact that under Florida law, the impact rule does not apply and has never applied to torts which involve impact to or contact with the claimant’s person. This is the line that has been established for many years. Instead, the dissents create a contrary interpretation of the impact rule based on what they believe the law should be, rather than how it has been established in Florida. The dissenting opinions further avoid and detract from the primary issue by expounding upon tangential issues such as corroboration of Mrs. Willis’s version of the incident, the differences between summary judgment and directed verdict proceedings, verdict forms and the comparative negligence of assailants, and the fact that some other states apply a different form of the impact rule than that which has been adopted in Florida.

Moreover, to the extent that the dissents claim that our longstanding interpretation of the impact rule has created confusion and inconsistent rulings in the lower courts, the only confusion I can detect that has arisen is in connection with those cases in which there has been no contact or no impact. On the other hand, the rule reaffirmed by the majority today has been consistently applied in every district court opinion where there has been contact or an impact, except for one — Ruttger, which is the outlier opinion and decision the majority has now disapproved. A logical discussion of what the law should be can only begin with at least an acknowledgement of existing law. The dissents expand upon what the law “should be” to actually suggest that the “impact rule” should be abolished. If the dissent believes the line established in Florida based upon touching or contact versus no contact “makes no sense,” dissenting op. of Cantero, J., at 868, maybe it is time to consider simply abolishing the “impact rule” entirely. While I do believe the “impact rule” has a valid place in our jurisprudence when properly applied, we could throw the proverbial “baby out with the bathwater,” as the dissent concludes. Indeed, if the dissents’ interpretation of the “impact rule” accurately reflected the current state of Florida law, I would most assuredly support abolition of the rule.

To fully understand the rationale for application of the impact rule and its limited exceptions, and to understand that the interpretation of the rule employed by the dissents is inaccurate, it is necessary to review the extensive history of this doctrine. The name of the rule itself — Impact — defines the rule which my good colleagues ignore. The initial discussion of an “impact rule” in Florida can be traced to at least 1893 when this Court was faced with the issue of addressing a claim seeking damages for mental injuries suffered in the absence of contact with the plaintiffs person. In International Ocean Telegraph Co. v. Saunders, 32 Fla. 434, 14 So. 148 (1893), the plaintiff filed an action against a telegraph company for failing to properly deliver a telegram to him. See id. at 148. As a result of the defendant’s mishandling of the telegram, the plaintiff was unaware that his wife was deathly ill and, thus, he was unable to return to Jacksonville where his wife was in the hospital until after her death. See id. This Court reversed a judgment entered in favor of the plaintiff in this non-impact context, noting that in cases in which damages for mental injuries alone are being sought without actual impact to the plaintiff,

mental suffering [h]as never [been] allowed to be considered as an element of damages for which pecuniary compensation could be awarded, except (1) in cases of torts, where there was some physical injury and bodily suffering, in which cases, whether there were any circumstances justifying exemplary damages or not, the mental suffering, incident to, connected with, and flowing directly from the physical injury was permitted to be considered in connection with the physical pain, both taken together, but not the one disconnected from the other; and (2) in cases founded purely in tort, where the negligence was so gross as to reasonably imply malice, or where, from the entire want of care or attention to duty, or great indifference to the persons, property, or rights of others, such malice will be imputed as would justify the assessment of exemplary or punitive damages; and (3) in cases growing out of contract, in the one exceptional case of the breach of a contract to marry.

Id. at 151. In the Court’s view, in cases such as that pending, circumstances involving no impact with the plaintiffs person, the plaintiffs only injury — “mental suffering and disappointment” — “is one that soars so exclusively within the realms of spirit land that it is beyond the reach of the courts to deal with, or to compensate.” Id. at 152. Thus, Saunders marked the Court’s formal recognition that it would not allow recovery for mental suffering alone in circumstances where no physical contact with the claimant had occurred without the plaintiff demonstrating “some physical injury” from which the mental suffering was “incident to, connected with, and flow[ed] directly [therejfrom.” Id. at 151.

The so-called rule was again addressed in the non-impact context in 1950 in our opinion in Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950). In Kirksey, the plaintiff sought compensatory and punitive damages for mental pain and anguish for the wrongful withholding and handling of her child’s dead body under a scenario in which there was, again, no physical impact to the claimant. See id. at 189. In our opinion, we reaffirmed a “com-mittment] to the rule ... that there can be no recovery for mental pain and anguish unconnected with physical injury in an action arising out of the negligent breach of a contract whereby simple negligence is involved.” Id. at 189. However, we recognized an exception for cases involving outrageous or intentional conduct, declining to

extend this rule to cases founded purely in tort, where the wrongful act is such as to reasonably imply malice, or where, from the entire want of care of attention to duty, or great indifference to the persons, property, or rights of others, such malice will be imputed as would justify the assessment of exemplary or punitive damages.

Id. We concluded that the facts in Kirksey satisfied this standard and reversed the lower court’s entry of final judgment on demurrer in favor of the defendant. See id. at 190.

The impact rule was next addressed by this Court in 1954 in our opinion in Crane v. Loftin, 70 So.2d 574 (Fla.1954). In Crane, “the plaintiff sought damages impersonal injuries alleged to have resulted from fright and mental anguish unaccompanied by direct physical impact or trauma”, to the complainant resulting from the defendant’s negligent operation of a locomotive. Id. at 575 (emphasis supplied). In our decision affirming the dismissal of the plaintiffs action, we recognized that absent facts in “an action in tort ... such as to reasonably imply malice, ... recovery for mental pain and anguish unconnected with direct physical impact or trauma may [not] be authorized.” Id. (emphasis supplied). Based on the foregoing, it is clear that in Crane, we formally recognized that the rule announced in Saunders was also applicable in common law tort actions and that either “physical impact or trauma" to the claimant was required to “recover! ] for mental pain and anguish.” Crane, 70 So.2d at 575 (emphasis supplied). Therefore, after our opinion in Crane, a person could not recover compensatory damages for mental distress or psychiatric injury in the absence of a discernible physical injury or illness flowing from emotional distress or an actual impact, factors expressed disjunctively.

In recent years, we have been repeatedly asked to address the continued vitality of the impact rule, and have consistently responded and reaffirmed that the rule serves as an important safeguard when applied under certain proper circumstances in our judicial system. See Rowell v. Holt, 850 So.2d 474, 478 (Fla.2003). It has been primarily misapplication, misunderstandings, and erroneous extensions of the rule, at times generated by opinions from this Court, that have produced this ongoing litigation. We need look no further than my colleague’s dissenting opinion in this case to observe how misapplication of the rule can lead to summary denials of meritorious claims and consequently produce fertile ground for calls for abolishment of the rule entirely. Although this Court has consistently reaffirmed the viability of the rule in Florida, “in a certain very narrow class of cases in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale” of applying the rule, it has created and defined only very narrow exceptions to the applicability of the rule. Id.; see also Gracey v. Eaker, 837 So.2d 348, 351 (Fla.2002) (affirming impact rule in the non-contact context as the law in Florida but holding that it was inapplicable where psychotherapist breached statutory duty of confidentiality); Tanner v. Hartog, 696 So.2d 705, 708 (Fla.1997) (holding that impact rule is inapplicable to a claim for negligent stillbirth); Kush v. Lloyd, 616 So.2d 415, 423 (Fla.1992) (holding that impact rule is inapplicable to a claim for wrongful birth).

Despite the extensive history of the impact rule that has been consistently applied in Florida, the view embodied within the dissenting opinions of my esteemed colleagues would rewrite over one hundred years of Florida law and hold contrary to that precedent by requiring a Florida citizen who has clearly sustained an impact to or unauthorized touching of his or her body to also demonstrate “some physical injury or manifestation” or significant injury to state a viable cause of action sounding in tort, currently a requirement only in non-impact cases. See dissenting op. of Wells, J., at 865; dissenting op. of Cantero, J., at 867. This Court has never required or approved attempts to quantitatively assess the nature or extent of a legal injury produced by a touching or sustained as the result of a physical impact or contact as a threshold for allowing an action to recover for mental distress to proceed. Rather, we have consistently recognized that it is the mere existence of a physical impact or contact that is the criterion by which actions are deemed viable, not the relative force of the impact or contact, nor the size of the bruise or scrape that may result from that contact. This Court made this clear in our decision in Clark v. Choctawhatchee Electric Co-Operative, Inc., 107 So.2d 609 (Fla.1958). In Clark, the Court addressed whether the impact rule barred a plaintiffs negligence claim arising from the plaintiff allegedly sustaining an electrical shock. See id. at 610. In concluding that the impact rule did not present a bar to the plaintiffs claim, the Court noted that “too much emphasis has been placed on the absence from the appellant’s body of evidence of trauma such as burns, bruises, or scars.” Id. at 612. The Court further noted that “an electrical shock, or trauma, or impact may be administered and not leave an outward sign,” and that it was error to “limit[ ] evidence of trauma to visible bodily injury.” Id. The nature or extent of the visible physical damage which results from the touching that occurred is not the proper inquiry in determining whether the claim is sustainable.

Even more disturbing and questionable is the analysis employed by the dissenting justices, which relies on cases that do not involve an impact to arrive at this additional “demonstrative injury” requirement. This new requirement clearly departs from longstanding Florida precedent, which has always required either impact or a physical manifestation of injury. In the instant matter, Mrs. Willis indisputably sustained a touching or impact to her person and, therefore, stated a viable cause of action under Florida law.

For example, one colleague begins his dissent by stating that “we have never applied the [impact] rule without requiring physical injury.” Dissenting op. of Cante-ro, J., at 867. Although this correctly states that when there is no impact, the “impact rule” requires an actual physical injury as a predicate to recovery, but only and exclusively when there is no impact or no touching, it neglects to recognize that the rule only applies in cases which do not involve an unauthorized touching or an impact with the plaintiffs person. In cases, such as the one before us, which do involve a touching, a contact, or an impact to the person, no matter how slight, we historically have never required that Florida citizens also demonstrate a particular physical manifestation of injury to state a viable cause of action. The “impact rule” simply has no application. Rather, in such cases, we have consistently recognized a cause of action without limitation by the “impact rule” and have declined all attempts to assess the extent, significance, or nature of injury that is alleged to have resulted from the impact or touching, as such an assessment is totally unnecessary to factual scenarios that involve impact to the plaintiff. See Hagan v. Coca-Cola Bottling Co., 804 So.2d 1234 (Fla.2001) (holding that the impact rule does not apply to cases where a plaintiff suffers emotional distress as a direct result of the consumption of a contaminated beverage because the ingestion of a food or beverage containing a foreign substance constitutes an impact); Clark v. Choctawhatchee Elec. Coop., Inc., 107 So.2d 609 (Fla.1958). The “impact rule” has application only when there is no impact or no touching, and where there is an absence of impact or contact, we have permitted some exceptions based on the physical manifestation of an injury.

Included within my good friend’s discussion of Florida’s “physical injury requirement” is a list of cases which are presented as support for the position that this Court has historically required both the manifestation of physical injury and impact to allow recovery for pain and suffering or damages in the nature of emotional distress. However, of all the cases cited to support this, only three actually involved an impact to the person, and any discussion in those cases of a physical injury requirement was exclusively in reference to the “impact rule” in the abstract, which applies solely in cases which do not involve an impact to the person, and absolutely did not apply a rule as advanced by my learned colleagues.

For instance, my colleague is correct that in Food Fair Stores of Florida, Inc. v. Macurda, 93 So.2d 860 (Fla.1957), this Court recognized that “damages will not be awarded for mental suffering absent physical injury.” Id. at 861. However, this fails to recognize, acknowledge, or even mention that in making this statement the Court was merely stating the required elements of the impact rule when applicable in Florida but then specifically held that the rule was totally inapplicable to the facts of the case before the Court which involved ingestion of contaminated spinach — which undoubtedly constitutes an impact. See id. at 862; see also Hagan. Moreover, the case that the Macurda Court referred to and relied on when restating the abstract rule applicable in non-impact cases, Dunahoo v. Bess, 146 Fla. 182, 200 So. 541 (1941), undoubtedly did not involve an impact as it involved a claim for damages resulting from the alleged careless embalming of the body of the plaintiffs deceased wife. . See id. at 542. Similarly, in both Hagan v. Coca-Cola Bottling Co., 804 So.2d 1234 (Fla. 2001), and Clark v. Choctawhatchee Electric Co-Operative, Inc., 107 So.2d 609 (Fla.1958), we noted that the “impact rule” is applicable to cases involving no impact, but we then proceeded to specifically hold that the rule did not apply to Hagan and Clark because an impact or touching was present in each case. See Hagan, 804 So.2d at 1237-39, 1241; Clark, 107 So.2d at 612.

A review of the remainder of the eases cited by my colleague in support of the assertion that this Court has “never applied the [impact] rule without requiring physical injury,” dissenting op. of Cantero, J., at 867, demonstrates that these cases have no application in this discussion and are completely distinguishable from the instant case in that there was no impact to the person seeking damages for mental anguish or emotional distress. See Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950) (no impact where plaintiff sued undertaker for unlawfully withholding the body of deceased child); Brown v. Cadillac Motor Car Div., 468 So.2d 903 (Fla.1985) (no impact where plaintiff sued for defective automobile equipment that caused the death of his mother); Champion v. Gray, 478 So.2d 17 (Fla.1985) (no impact where plaintiff died from shock and grief after a driver struck and killed the plaintiffs daughter); Gonzalez v. Metro. Dade County Pub. Health Trust, 651 So.2d 673 (Fla.1995) (no impact where parents sued for negligent mishandling of deceased infant); R.J. v. Humana of Fla., Inc., 652 So.2d 360 (Fla.1995) (no impact where plaintiff sued for misdiagnosis of HIV); Zell v. Meek, 665 So.2d 1048 (Fla.1995) (no impact where plaintiff sued after observing the death of her father caused by a bomb explosion); Tanner v. Hartog, 696 So.2d 705 (Fla.1997) (no impact where parents sued for negligent stillbirth); Time Ins. Co. v. Burger, 712 So.2d 389 (Fla.1998) (no impact where plaintiff sued insurance company for failure to pay medical bills); Gracey v. Eaker, 837 So.2d 348 (Fla.2002) (no impact where plaintiff sued psychotherapist for revealing confidential client information); Rowell v. Holt, 850 So.2d 474 (Fla.2003) (no impact where plaintiff sued for negligent conduct of public defender which resulted in the wrongful pretrial imprisonment of plaintiff); 5. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317 (Fla.2005) (no impact where plaintiff alleged that the negligence of defendant caused plaintiff to lose custody of his children and parental rights).

Justice Cantero further asserts that “our jurisprudence has created much confusion in the lower courts,” dissenting op. at 876, and refers to cases in which the district courts certified questions of great public importance in an effort to bolster his assertion. See dissenting op. of Cante-ro, J., at 876-77 n. 16. However, a close inspection reveals no such confusion exists when these cases are viewed through the lens of the “impact rule” as it has always existed in Florida; i.e., where there is impact or an unauthorized touching, there is no need to demonstrate physical injury, and where there is no impact or touching, an actual physical injury is required. Only two of the district court cases cited by Justice Cantero (Hagan and the instant case) involved an impact or a touching of the plaintiffs person, and in each of those cases we subsequently held that the lack of physical injury did not bar recovery because contact occurred. See majority op. at 850; Hagan, 804 So.2d at 1241. The remaining district court eases cited by the dissent involved no impact. See Thomas v. OB/GYN Specialists of Palm Beaches, Inc., 889 So.2d 971 (Fla. 4th DCA 2004) (no impact where plaintiff father sued for alleged malpractice which led to loss of a fetus); Abril v. Dep’t of Corrections, 884 So.2d 206 (Fla. 2d DCA 2004) (no impact where plaintiff sued for 'failure to follow confidentiality procedures), approved, No. SC04-1747, 969 So.2d 201, 2007 WL 3024020 (Fla. Oct. 18, 2007); Woodard v. Jupiter Christian Sch., Inc., 913 So.2d 1188 (Fla. 4th DCA 2005) (no impact where plaintiff sued for the revelation of confidential student communications), review granted, 924 So.2d 812 (Fla.2006); Jordan v. Equity Properties & Dev. Co., 661 So.2d 1307 (Fla. 3d DCA 1995) (no impact where the victim of a robbery hit the assailant with a deposit bag).

My good friend also suggests that this Coui’t “certainly had the opportunity in Hagan to hold that the impact rule requires only impact, since only impact was present in that case.” Dissenting op. of Cantero, J., at 874. However, this assertion is quite simply illogical because the impact rule does not apply when there is impact to or contact with the claimant’s person. Instead, in Hagan we correctly recognized that the ingestion of a contaminated substance constituted an impact, thereby rendering the “impact rule” totally inapplicable and any accompanying demonstrable physical injury requirement inapplicable. 804 So.2d at 1238-39, 1241. Contrary to my colleague’s assertion, we did not create an exception to the impact rule in Hagan. Rather, we explicitly recognized that:

As this Court recognized in Tanner, the impact rule does not apply where emotional damages are a “consequence of conduct that itself is a freestanding tort apart from any emotional injury.” 696 So.2d at 708 (quoting Kush, 616 So.2d at 415). And, of course, Doyle recognized a cause of action based on the ingestion of a contaminated food since ingestion itself constitutes an impact. Consistent with our opinions and holdings in Tanner and Doyle, we hold that a plaintiff need not prove the existence of a physical injury in order to recover damages for emotional injuries caused by the consumption of a contaminated food or beverage.... Further, since we have concluded that there was an impact in the case at hand by the ingestion of a contaminated substance, and the impact rule does not bar the action, we decline to rule on the broader question [of whether to abolish the impact rule].

804 So.2d at 1241 (emphasis supplied). This Court reiterated in Hagan that although the “impact rule” may require demonstrable physical injury when it is applicable, in cases where there is a contact or an impact, such as ingestion in Hagan, or touching a gun to one’s head in the present case, the rule simply does not apply., Therefore, although my friend in dissent correctly asserts that the “impact rule” requires a demonstrable physical injury in cases where there is no impact, he fails to recognize, or even acknowledge, that the “impact rule” has absolutely no application in cases which involve contact, touching, or an impact to the plaintiffs person. Instead, he attempts to dismiss our unequivocal statement in Hagan of the law as it has always been in Florida by calling it “merely dictum.” Dissenting op. of Cantero, J., at 874.

The dissenting opinions utilize abstract statements of the “impact rule” in and from non-impact cases in an effort to justify their view that Florida law requires a physical manifestation of injury even in cases where it is undisputed that the plaintiff has suffered an impact. I believe that the dissents’ focus on cases with inapposite facts (no contact) to reach what they believe to be the preferable rule of law is both faulty and misguided. In my view, the dissents’ proposed method of applying a rule that was very clearly designed and intended to pertain only to cases which involve no contact or no impact to the facts of the case before us, which clearly and admittedly involves an impact to Mrs. Willis’s person, entirely misconstrues our precedent in this area, misapplies the “impact rule” to factually distinguishable cases in which it has never been applied, and would create a bar that has never before existed to causes of action in Florida. If we are urged to rewrite over a century of Florida law, it should be done openly and with a straightforward approach stating that we are doing so, rather than engaging in an attempt to persuade that we are merely applying our longstanding precedent as it was designed, intended, and has been established, when in fact we are not. In my view, the dissents attempt to do the latter by relying upon a rule of law which has consistently been applied only to non-impact eases to reach the conclusion that a claim which undoubtedly involves impact should be barred, without even so much as acknowledging this critical distinction. In truth, these dissenting assertions amount to little more than straw men which are born of the erroneous interpretation that the impact rule (and its requirement that physical injury be demonstrated) applies in all cases, not just cases where no impact has been sustained by the victim.

Finally, with regard to the holding of the majority, one colleague opines:

Under the conclusions of the per curiam and concurring opinions, any person in Florida other than perhaps a trespasser can now claim that someone touched the person on an owner’s premises and that the touching frightened the person so much that the person is entitled to damages for emotional distress, resulting in the premises owner being subject to a jury award for damages against the owner.

Dissenting op. of Wells, J., at 866. However, my colleague is misconstruing the majority’s opinion. He fails to recognize, or acknowledge, that the instant matter is before this Court on final summary judgment in favor of the defendants. Therefore, the majority merely concludes that if a review of the facts in a light most favorable to the nonmoving party reveals that the plaintiff has suffered a physical impact or touching, then the claim should not be barred prematurely by misapplication of an erroneous rule of law to those circumstances. Contrary to the assertion of my colleague, the majority opinion should not be construed as commenting on the merits of Mrs. Willis’s claim, or as holding that “[Mrs. Willis] is entitled to damages for emotional distress.” Dissenting op. of Wells, J., at 866. In addition, the same dissent misconstrues the majority opinion as authorizing “any person in Florida other than perhaps a trespasser” to institute an action for injuries incurred on an owner’s property. Id. Again, contrary to his interpretation of the majority opinion, the majority of course recognizes that not just “any person in Florida” can recover in a negligence action but rather that the plaintiff must demonstrate that he or she is owed a duty by the defendant, that the defendant breached that duty, and that such breach resulted in a physical impact or touching of the plaintiff and accompanying intangible damages.

In his dissent, my colleague further incorrectly asserts that “all of our district courts” have held similarly to the Third District’s decision in the instant matter. Dissenting op. of Wells, J., at 867. However, a review of the district court decisions upon which he relies for support for this assertion reveals that the analysis in his dissent is not at all supported by those decisions. In Rivers v. Grimsley Oil Co., 842 So.2d 975 (Fla. 2d DCA 2003), the district court made it unmistakably clear that the case did not involve impact with the plaintiffs person. The district court was careful to note that: “The precise issue presented is whether an invitee at a convenience store (1) who is traumatized by a robber but sustains no physical impact or physical injuries in the robbery ... may allege a cause of action in simple negligence against the store owner.” Id. at 977 (emphasis supplied). Similarly, the facts of Davis v. Sun First National Bank of Orlando, 408 So.2d 608 (Fla. 5th DCA 1981), also undoubtedly did not involve an impact or touching of the plaintiff. The Davis decision involved a bank robbery accomplished by the bank robber simply handing the teller a note demanding money. See id. at 609-10. The district court correctly concluded that these circumstances did not qualify as a physical impact, see id. at 610, and, therefore, the reasoning employed therein is not applicable to the case before us, which clearly involves an impact to and the contact with Mrs. Willis’s person. The remaining district court decisions relied upon by my colleague in his dissent cannot be said to support his view in any way as they both involve per curiam opinions with no reference whatsoever to the facts of either case. See Jackson v. Sweat, 855 So.2d 1151 (Fla. 1st DCA 2003); Minucci v. United Parcel Service, Inc., 846 So.2d 568 (Fla. 4th DCA 2003). Lastly, two of the four cases cited by my colleague in dissent rely upon the Third District’s outlier opinion in Ruttger, a case which we disapprove today. See Jackson, 855 So.2d at 1151; Rivers, 842 So.2d at 977.

Based on the foregoing, I voice my agreement with the ultimate result of the majority, but my complete disagreement with the outcome urged and the reasoning employed by the dissenting views. In my view, the historical basis, development, and proper application of the “impact rule” in Florida compels the conclusion that it has no application in cases, such as that before us today, which involve an impact to the plaintiffs person. However, because the majority fails to address the significant challenges to the rule that compels the majority decision today, I am compelled to specially concur.

. My colleague, in his dissenting opinion, contends that the evidence set forth in the majority decision with regard to the attack suffered by Mrs. Willis, although undisputed, is "uncorroborated.” Dissenting op. of Wells, J., at 865. However, "corroboration” is not necessary in the summary judgment posture, and it is clear from the record that Mrs. Willis's car, and all of her belongings therein, were in fact stolen. Moreover, after conducting a thorough review of the record I perceive no hint of fabrication in Mrs. Willis's version of events, especially when this Court must view the facts in a light most favorable to her as the nonmoving party. See Moore, 475 So.2d at 668. In his dissent, my colleague cites only testimony of Mrs. Willis that was elicited by the defense, and takes that testimony completely out of context, in an effort to bolster his argument. Such a view of the record is contrary to well-established appellate principles.

. It should be noted that although the Court did not explicitly find that a contract existed between the plaintiff and the defendant, it did appear to base its holding in part on the fact that it viewed the plaintiff’s claim as based partially in contract: “In the case under consideration, the plaintiffs suit, though sounding in tort, is for compensation only, for the breach by the defendant telegraph company of its contract promptly to deliver a telegram summoning him to the deathbed of his wife.” Saunders, 14 So. at 152.

. The string citation to cases from other jurisdictions in support of the assertion that a physical injury or manifestation is required even where there has been an impact to the plaintiff, see dissenting op. of Cantero, J., at 870, is similarly misguided because even some of those cases did not involve a touching of, or impact to, the plaintiff. See, e.g., FMC Corp. v. Helton, 360 Ark. 465, 202 S.W.3d 490 (2005) (no impact where defendants improperly sprayed plaintiffs’ wheat crops with an insecticide); Vance v. Vance, 286 Md. 490, 408 A.2d 728 (1979) (no impact where husband failed to advise wife that their marriage was void); Engler v. Illinois Farmers Ins. Co., 706 N.W.2d 764 (Minn.2005) (no impact where mother witnessed a car striking her child); Johnson v. State, 37 N.Y.2d 378, 372 N.Y.S.2d 638, 334 N.E.2d 590 (1975) (no impact where plaintiff was misinformed that her mother had died). Moreover, mention to other states that have required both an impact and a physical injury to recover for mental distress is surprising because this has never been the standard under Florida law.

. Even the United States Supreme Court has recognized that under the case law of certain states, a plaintiff need not demonstrate a physical injury in order to recover for emotional distress where a physical impact has occurred. See Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 547, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) ("Under tire physical impact test, a plaintiff seeking damages for emotional injury stemming from a negligent act must have contemporaneously sustained a physical impact (no matter how slight) or injury due to the defendant’s conduct.” (emphasis supplied)).

. I take issue with my colleague’s approach of viewing the facts in a light most favorable to the moving party in determining whether to approve an entry of summary judgment. Such an approach is directly contrary to and disregards long-established case law dictating that, when reviewing the entry of summary judgment, the record is to be viewed in the light most favorable to the nonmoving party. See Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 259 (Fla.2002). Under this standard, when a nonmoving party such as Mrs. Willis seeks damages for emotional distress, and the threshold requirement of an impact has been met, an appellate court has a duty to reverse the entry of summary judgment, regardless of whether the court agrees with the extant law.

. A learned colleague also presents a similar faulty argument when he contends that "today's decision grants every plaintiff ever exposed to asbestos fibers a prima facie case for negligent infliction of emotional distress.” Dissenting op. of Cantero, J., at 872 n. 13. These assertions that "the sky is falling” amount to little more than scare tactics without support in the law.

PARIENTE, J.,

concurring.

I agree with the majority that in this case Florida’s judicially created impact rule, which generally prohibits recovery of emotional distress damages, should not apply because the plaintiff sustained a physical impact. See Rowell v. Holt, 850 So.2d 474, 483 (Fla.2003) (Pariente, J., specially concurring); Gracey v. Eaker, 837 So.2d 348, 358 (Fla.2002) (Pariente, J., concurring).

I have always understood that the presence of an impact makes a showing of physical injury or illness flowing from the emotional distress unnecessary. See Gracey, 837 So.2d at 358 (“The impact rule, as applied in Florida, is that, in the absence of a discernible physical injury or illness flowing from emotional distress or an actual impact, a person cannot recover compensatory damages for mental distress or psychiatric injury.”) (Pariente, J., concurring) (emphasis supplied). In other words, if there is an impact, a plaintiff can recover for emotional distress regardless of whether the plaintiff suffered a physical injury. I recognize that after this Court’s decision in Crane v. Loftin, 70 So.2d 574 (Fla.1954), some of the language used in our cases and relied on by Justice Cantero in his dissent could be construed to require a plaintiff to demonstrate both a physical impact and a physical injury in order to recover damages for negligent infliction of emotional distress. However, as Chief Justice Lewis points out in his separate opinion, any statements referred to in those cases concern the “impact rule” in the abstract. In any event, the majority now clarifies any ambiguity in our prior decisions.

Clearly, the impact rule does not bar Mrs. Willis from bringing a cause of action in this case. Specifically, the evidence demonstrates that Mrs. Willis was touched against her will when the assailant placed a pistol against her head and also when the assailant “patted down” her exposed body. Mrs. Willis also alleged that as a result of this incident she has received treatment from a psychiatrist, a psychologist, and a general practitioner for anxiety, depression, panic attacks, and post-traumatic stress disorder. Further, Mrs. Willis alleged that she is taking Paxil, Buspar, Wellbutrin, and Zoloft for her condition. According to these allegations, it is clear that Mrs. Willis has suffered significant emotional distress damages. Indeed, the psychologist stated in an affidavit that Mrs. Willis has experienced physical manifestations of the emotional injury and described these manifestations as including sexual dysfunction, peripheral temperature changes, muscle tightening and increased sweat gland activity. Therefore, as the majority correctly concludes, under the facts of this case the impact rule does not preclude recovery of the mental pain and suffering damages alleged.

Although I agree with the result reached by the majority in this case, I write separately to once again express my concerns regarding the vitality of the impact rule as it exists in Florida, and to urge this Court to consider receding from the impact rule as set forth in this Court’s precedent. I recognize that this Court has to date declined to recede from the impact rule, but at the same time, the Court has continued to carve out well-meaning exceptions to this rule on a case-by-case basis. This ease-by-case approach has resulted in the district courts of appeal continuing to certify questions of great public importance to this Court concerning the applicability of the impact rule under the facts of a particular case. This alone demonstrates the lack of stability and the lack of predictability in this area of the law, and should cause us to consider whether the impact rule is the soundest common law approach to addressing concerns about awarding intangible damages unless a “genuine” injury can be shown.

As I explained in Rowell, the impact rule “reflects an outmoded skepticism for damages resulting from mental injuries.” 850 So.2d at 483 (Pariente, J., specially concurring). In fact, Justice Wells’ dissent reveals a similar skepticism in that the dissent expresses concern over not being able to corroborate or evaluate Mrs. Willis’s veracity about the details of the robbery or even the occurrence of the robbery because she did not suffer a discernible physical injury. However, the trier of fact, which in these cases is often a jury, will be vested with the responsibility of determining the credibility of Mrs. Willis’s testimony and the evidence presented in this case. Further, section 90.605 of the Florida Evidence Code operates to guard against giving false testimony in a court proceeding by requiring that each witness “declare that he or she will testify truthfully,” and by mandating that each witness take an oath or affirmation to this effect which must be noted in the record. Thus, any testimony given in this case will be subject to the penalties of perjury. Moreover, the fact that there is expert testimony substantiates the seriousness of Mrs. Willis’s mental and emotional injuries.

I reiterate my agreement with the Illinois Supreme Court’s summary of the primary criticisms of the impact rule:

The requirement [of physical manifestation of emotional distress] is overinclu-sive because it permits recovery for mental anguish when the suffering accompanies or results in any physical impairment, regardless of how trivial the injury. More importantly, the requirement is underinclusive because it arbitrarily denies court access to persons with valid claims they could prove if permitted to do so.

Additionally, the requirement is defective because it “encourages extravagant pleading and distorted testimony.” To continue requiring proof of physical injury when mental suffering may be equally recognizable standing alone would force “vietim[s] to exaggerate symptoms of sick headaches, nausea, insomnia, etc., to make out a technical basis of bodily injury upon which to predicate a parasitic recovery for the more grievous disturbance, the mental and emotional distress she endured.”

Id. at 483-84 (Pariente, J., specially concurring) (quoting Corgan v. Muehling, 143 Ill.2d 296, 158 Ill.Dec. 489, 574 N.E.2d 602, 608 (1991)) (alterations in original).

This case is a good example of the practical problems caused by the impact rule’s requirement that a plaintiff sustain a physical impact in order to maintain an action for negligent infliction of emotional distress. In this case, if the gun had been placed within an inch of Mrs. Willis’s head without touching her, no one would seriously think that the emotional distress accompanying this trauma would be any less severe than that suffered by Mrs. Willis as a result of the gun actually touching her. It seems to me that Justice Cantero recognizes this reality in his dissent when he states that “the Court now allows emotional distress damages even where the distress may be minimal or nonexistent; yet where the damages may be great but no ‘impact’ occurred, the Court would deny them.”

But instead of receding from the impact rule, we continue to create case-by-case exceptions. As I stated in Roivell and G-racey, I believe that the traditional foreseeability analysis applicable to negligence claims is the more appropriate framework for a limitation on tort recovery in this state. See generally McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla.1992) (“The duty element of negligence focuses on whether the defendant’s conduct fore-seeably created a broader ‘zone of risk’ that poses a general threat of harm to others.”). Accordingly, I would abolish the impact rule as applied in Florida and would adopt the traditional foreseeability analysis. As a practical matter, the traditional foreseeability analysis eliminates the arbitrary requirements of the impact rule, which will lead to greater stability and predictability in this area of the law.

ANSTEAD, J., concurs.

. In his dissent. Justice Cantero brought to my attention my statement in Gracey that "a majority of jurisdictions continue to adhere to the traditional rule requiring some form of physical injury.” Gracey, 837 So.2d at 358 n. 15 (Pariente, J., concurring). This statement was taken from the conclusion of a law review article in which the author used “physical injury” as a short-hand reference to "physical injury,” “physical impact,” and “physical manifestation.” See Scott D. Marrs, Mind Over Body: Trends Regarding the Physical Injury Requirement in Negligent Infliction of Emotional Distress and "Fear of Disease" Cases, 28 Tort & Ins. L.J. 1, 39 (1992). Specifically, the author noted that "[a]n ebbing majority of jurisdictions ... require some form of 'physical injury,' ‘physical impact,' or ‘physical manifestation' as a prerequisite to the recovery of [negligent infliction of emotion distress] damages.” Id. at 1. Thus, even this statement from the law review article shows how the requirement has been stated as either a physical injury or a physical impact. My review of this article and cases cited in other articles reveals the confusion that exists in many states as to whether the presence of an impact removes the case from the application of the impact rule (perhaps better stated as the “no-impact” rule). I have read the cases cited in Justice Cantero's dissent and have concluded that it is impossible to determine whether a majority of jurisdictions indeed require a physical injury even in the presence of an impact. As noted by Chief Justice Lewis in his special concurrence, many of the cases cited by Justice Cantero discuss the impact rule in situations in which there is no physical impact to the plaintiff. See, e.g., Engler v. Illinois Farmers Ins. Co., 706 N.W.2d 764 (Minn.2005) (bystander case). Other cases cited by Justice Cantero involve a special type of tort. See, e.g., Wood v. Wyeth-Ayerst Labs., Div. of Am. Home Prods., 82 S.W.3d 849, 852 (Ky.2002) (holding that physical injury is required, even with a physical impact, in cases involving exposure to toxic substances); Houston v. Texaco, Inc., 371 Pa.Super. 399, 538 A.2d 502, 504-05 (1988) (holding that physical injuries were required in a case involving contamination of a plaintiff's water well). Further, cases within the same jurisdiction fail to completely iterate the requirements of the impact rule in line with previous cases in the same jurisdiction, such as in Mississippi, compare Paz v. Brush Engineered Materials, Inc., 949 So.2d 1, 4 (Miss.2007) (“In such a case of ordinary negligence a plaintiff may not recover damages for emotional distress without showing a physical manifestation of injury or demonstrable harm.”) with Adams v. U.S. Homecrafters, Inc., 744 So.2d 736, 743 (Miss.1999) (“Our language in the previously cited cases, adopting the term ‘demonstrable harm’ in place of 'physical injury,' indicates that the proof may solely consist of evidence of a mental injury without physical manifesta tion.") (emphasis supplied), Pennsylvania, compare Shumosky v. Lutheran Welfare Services of Northeastern Pa., Inc., 784 A.2d 196, 199-200 (Pa.Super.2001) (defining original impact rule as precluding recovery for mental distress unless “accompanied by physical injury or physical impact,” and holding that mental distress may be recovered under either "the impact rule, the zone of danger rule or the bystander rule") with Houston, 538 A.2d at 505 (holding that physical injuries were required in a case involving contamination of a plaintiff's water well), and Kentucky. Compare Steel Technologies, Inc. v. Congleton, No. 2005-SC-000551-DG, 234 S.W.3d 920, 928-29, 2007 WL 1790599, *6-7 (Ky. June 21, 2007) (holding that impact rule is satisfied, in a case involving an auto collision, by physical impact or physical injury, so long as the mental distress is caused by and precedes the physical contact) with Wood, 82 S.W.3d at 852 (holding that physical injury is required, even with a physical impact, in cases involving exposure to toxic substances).

. Most recently, in Rowell, we held that the impact rule did not preclude recovery of emotional distress damages when an attorney's negligence resulted in his client’s wrongful pretrial incarceration. 850 So.2d at 481; see also Gracey, 837 So.2d at 356-57 (concluding that the impact rule did not bar recovery of emotional distress damages arising from a psychotherapist's breach of the statutory duty of confidentiality); Tanner v. Hartog, 696 So.2d 705 (Fla.1997) (concluding that the impact rule did not preclude recovery of emotional distress damages resulting from a negligent stillbirth). In Rowell, we determined that an exception to the impact rule was warranted under the facts of that case because the attorney “could doubtlessly foresee” that his actions "would result in significant emotional distress.” 850 So.2d at 480.

. The Fourth District certified a question in Woodard v. Jupiter Christian School, Inc., 913 So.2d 1188 (Fla. 4th DCA 2005), review granted, 924 So.2d 812 (Fla.2006), concerning the issue of whether the impact rule precludes a claim for negligent infliction of emotional distress arising out of a breach of confidential information provided to a school chaplain. We also have recently decided the question certified by the Second District in Abril v. Department of Corrections, 884 So.2d 206 (Fla. 2d DCA 2004), approved, No. SC04-1747, 969 So.2d 201, 2007 WL 3024020 (Fla. Oct. 18, 2007), on the issue of whether the impact rule precludes a claim for negligent infliction of emotional distress resulting from a clinical laboratory's breach of a statutory duty of privacy and confidentiality regarding the disclosure of HIV testing information.

QUINCE, J.,

concurring.

In yet another case involving the Florida Impact Rule the Third District Court of Appeal affirmed a summary judgment entered by the trial court in favor of a hotel after a hotel patron, Mrs. Willis, sued the hotel for negligence in failing to exercise reasonable care to protect her from foreseeable criminal activity. The plaintiff in this case was a patron at the hotel who was told by a hotel security guard, provide by the respondent American Knights Security, to park in a parking lot across