The defendant in a lawsuit filed by Christina Grimmie’s brother filed a motion seeking to have his claim for negligent infliction of emotional distress dismissed because he acted “voluntarily.”
Singer’s Tragic Death
Singer, Christina Grimmie, died on June 10, 2016 after being shot by a deranged fan, Keith Loibel, on her way out of a performance venue in Orlando. She had been on NBC’s The Voice. Her brother, Marcus, tackled the shooter after the incident. A wrongful death lawsuit filed by her family alleges that the music tour promoter (AEG Live) failed to provide metal detectors or other security. Marcus’s claim for negligent infliction of emotional distress falls under an exception to Florida’s “impact rule.”
What Is The “Impact Rule” In Florida?
The impact rule in Florida operates to bar claims for emotional distress where there is not a physical injury. One of the exceptions to this rule is where an injury or death results to a close family member and the close family member witnesses the incident or arrives shortly thereafter. Therefore, in Marcus’s claim, there is no claim for a physical injury suffered by him. Instead, the root of his legal claim is that he either witnessed the shooting or arrived shortly thereafter so as to qualify him for damages due to emotional distress because of the circumstances of his sister’s death.
While we are on the topic, many claims for negligent infliction of emotional distress are viewed with an eye of skepticisim because, unlike a physical injury, there is no way to measure or test for emotional distress. However, one can imagine that witnessing a sibling get shot to death is a very emotionally trying thing for anyone to go through. The value of such claims, are subject to the opinions of the jury.
Entitlement to Damages
While it does not appear that the trial judge has ruled on this matter, Grimmie’s brother’s claim should not be dismissed and should be allowed to proceed under Florida law. For one, Marcus is a sibling and has a legally recognized relationship with his sister. Support for this can be found in the fact that he is actually one of the heirs at law to her estate. Therefore, Florida clearly recognizes a legal basis to the relationship between siblings. This is why a claimant for an exception to the impact rule does not have to be a spouse or minor child.
Second, Grimmie’s brother clearly either witnessed the shooting or arrived shortly enough thereafter to tackle him. There are other cases under Florida jurisprudence that have allowed claims for negligent infliction of emotional distress after several hours.
Third, while no details are provided on the extent of the severe emotional distress suffered by Grimmie’s brother, we must assume that he obtained professional psychological treatment.
The defense of whether Marcus acted voluntarily or not does not appear to have been previously addressed by Florida case law. As a Central Florida personal injury attorney, I suggest that a voluntary act by Grimmie’s brother should have no legal impact whatsoever on a claim for negligence infliction of emotional distress. The parallel that can be drawn to existing case law is that other cases exist where a mother successfully sued after hearing an impact with her child and arriving on the scene thereafter. (see Florida Bar Journal on Reynolds v. State Farm, 611 So. 2d 1294 (Fla. 4th DCA 1992). Likewise, the mother “voluntarily” ran out to see her severely injured child in the street, but no one can blame her for doing so. Therefore, “voluntarily” acting to tackle the shooter should be of no legal significance as it should have been enough just to witness the incident or arrive shortly thereafter.
Claim Subject To Finding Of Negligence
With all of that being said, Marcus’s claim is still subject to a finding of liability for negligence on the underlying legal claim for Grimmie’s wrongful death. While Grimmie’s death is a tragedy, there is little legal support for the notion that businesses in Florida are required to have metal detectors or have some means to search guests as they come into large venues. A likely outcome in a case such as this would be that a judge may take a motion for summary judgment on whether there is such a duty under Florida law under advisement while allowing the claim to proceed to trial. Depending on the evidence presented at trial and the jury verdict, the judge can enter a finding that there was no recognized duty under Florida law by entering either a directed verdict on liability or a judgment notwithstanding the verdict.
Summary judgment prior to a trial would mean that the plaintiff cannot present a legally recognized claim at trial under any circumstances. The problem with granting a summary judgment motion is that the testimony may very well bear out that industry standards for large entertainment venues require that adequate security be provided for the safety of guests as well as the performers. By 2016, all major theme parks required guests carrying bags to submit to a search of their bags being carried into the parks. This is also done for many large sports events. The industry standards for these large public events may be found by a jury to apply to music and concert halls.
Call A Central Florida Attorney To Discuss Your Claim
If you have a claim for negligent infliction of emotional distress after a loved one suffered a personal injury or a wrongful death, you should contact a Central Florida personal injury attorney to discuss your case. A consultation with an attorney is free and without an obligation to sign up. There are no attorney fees or costs unless money is recovered.
UPDATED May 23, 2017
The judge granted the defendant’s motion to dismiss and gave the plaintiff leave to file an amended lawsuit. Most importantly, the ruling from the judge stated that the plaintiff must attach a copy of Grimmie’s contract with the tour company.
Florida requires anyone suing over a contract to attach a copy of the contract to the lawsuit as an exhibit. Failure to do that will normally result in a motion to dismiss as did here.
Additionally, news reports indicate that the unnamed security company involved, likely a subcontractor of the tour company, was the subject of a defense motion to dismiss. Florida does not require a plaintiff to sue everyone who may be responsible for an injury. However, failure to sue everyone who has legal liability may result in an apportionment of fault against a non-party. This makes that portion of legal responsibility uncollectible because no judgment is ever entered on behalf of someone who was not a party to the lawsuit (think-lack of jurisdiction). One exception to this is when a named party is jointly and severally liable. For instance, a general contractor may be liable for subcontractors.
All of the problems with this lawsuit should be fixable by the attorneys involved.