CHIEF JUSTICE: GOODMORNING.

GOOD MORNING. MAY IT PLEASE THE COURT.I AM BARBARA YEEN GREEN , AND I BAR BARA GREEN , AND I REPRESENT MARJ ORIE AND WAY RAY WILLIS , WHO WERE T HEPLAINTIFFS BELOW. THIS RELATES TO THE CASE WHERE THE PLAINTIFF WAS VICTIM AFTER ARMED ROB BERY AND HAD A GUN HELD TO HER HEAD AND CLIC KED. THE R OBBER LI FTED UP HER CLOTHES AND PA TTED HER DO WN , LOOKING FOR MO NEY. TOOK HER PURSE AND TOOK H ERCAR AND TOOK HER BELONG IN GSTHAT WERE IN THE CAR.

CHIEF JUSTICE: W HAT WAS , THE PATTING DO YOU KNOW HOLDING THE GUN TO THE HEAD , DID THE TRIAL COURT NOT SEE THAT AS AN IMPACT ?

THE TRIAL COURT DID NOT SEE THAT AS AN I MPACT , YOURHONOR, AND NE ITHER DID THE THIRD DISTRICT. THERE IS LANGUAGE IN THE CASE LAW, HOWEVER THAT, AN IMPACT CAN BE VERY SLI GHT. IT CAN BE ANYTHING VISIBLE OR INVISIBLE , LA RGE OR SMALL, THAT TO UCHES OR E NTERS THE PLAINTIFF'S BODY THAT CLEARLY HA ENED HERE.

LE T ME A S K YOU , SHOULD OUR LAW ON , AND I KNOW THAT YOUR BRIEF AND SOME OTHERS , EXPRESS, MAYBE, SOME FRUSTRATION WITH THE LAW A S IT EXIST , BUT SH OULD OUR LAW ON WHETHER EMOT IONAL DISTRESS DAMAGE S ARE RECOVERABLE , DEP END ON WHETHER THE ROBBER ACT UALLY TOUCHES SOME BODY'S HEAD OR NOT?

I THINK THAT IS WHERE THE LAW DOES D RAW THE LINE RIGHT NOW, BUT I DO N'T THINK THAT IS WHERE IT SHOULD DRAW T HELINE, YOUR HONOR. NO, I DON'T . AS I HAVE SA ID IN THE BRIEF , THE "IMPACT RULE" IS A VERY BAD WAY TO DECIDE THIS KIND OF CASE. I THINK MS. WILLIS'S SITUATION FITS IN TO IF , BUT I DON'T THINK IT IS A GOOD WAY TO DE CIDE THIS KIND O F CASE. I THINK THE " IMPACT RULE" SHOULD BE ABOLIS HED .

I THINK YOUR BRIEF UNDERSTANDS THAT OUR DILE MMA , I GUESS , WITH THE "I MPACT RULE", IN TRYING T O PUT SHALL SOME KIND OF LIMIT O N RECOVERY, SO THAT NOT EVERY SINGLE TORT C L AIM IS NOW, ALSO, AN EMOTIONAL DISTRESS DAMAGES CLAIM, AND TRYING TO DRAW THE LINE, SO THAT ONLY THOSE FULLY LEGI TIMATE CLAIMS, ARE ONES THAT CAN B E RECOVERED IN DA MAGES , BUT I DON'T THINK THIS COURT OR ANY OTHER COURT, HAS, REALLY, BEEN ABLE TO DISTINGUISH THE GOOD FROM THE BAD KIND OF ARGUMENT.

WELL , I THINK THE "IMPACT RULE" IS A BAD WAY T O DISTINGUISH THE GOOD FROM THE BAD . BUT I THINK THAT ABOLISHING THE "IMPACT RULE" WOULD BE CONSISTENT WITH OUR P U BLIC POLICY OF HO LDING W RONG DOERS RESPONSIBLE FOR THE CRIME THEY CAU SED . IT WOULD COMPE NSATE T HEINJURED, WHICH IS A IMPORTANT PUBLIC P OLICY. FLORIDA IS IN THE MIN ORITY RIGHT NOW . ALMOST EVER YBODY ELSE , ACCORDING TO THIS COURT I N THE GONZALEZ CASE TEN YE ARS AGO , ALMOST EVE RYBODY ELSE HAS ABOL ISHED THE "IMPACT RULE".

BUT YOUR FIRS T LINE OF ATTACK, IF I UNDERSTAND IT, IS TO AR GUE TO US THAT YOU DO COME W ITHIN THE EXCEPTION THAT PROVIDES THAT, IF THERE IS CON TACT , HOWEVER SLIGHT OR SMALL , THEN , THE "IMPACT RULE" DOES NOT ALY TO YOUR CASE. IN OTHER WORDS, THAT YOU FIT THE CASE LAW OUT OF THIS COURT , DEFINE WAG CO NTACT IS. IS THAT CORRECT?

I THINK WE DO.

THAT IS YOUR CASE .

I THINK WE DO, YOUR HONOR.

YOU DON'T NEED US TO ABOLISH THE RULE, IN OR DE R FOR YOUR CASE TO FIT.

YOU DON'T, BUT YOU DO NEED TO CLARIFY IT , BECAUSETHERE ARE THREE OR FOUR LOWER AELLATE COURT CASES WITH SIM ILAR FA CTS. WE ARE WITH A GUN HELD TO SOMEBODY'S HEAD AND THEY A REPUSHED. THEY ARE HELD UP , I T HINKTHERE ARE AT LE AST THREE HOTEL CASES, THE RECORD HOTEL CASE COMES TO MIND THAT THE THIRD DIST RICT BELOW SAID WE CAN'TDISTINGUISH T I TOLD THEM IN ORAL ARGUMENT, I COU LDN'T REALLY DIST INGUISH IT.

THAT IS WHY WE HAVE THE CONFLICT JURISDICTIONAL BASIS , TO RESOLVE THAT KIND OF CONF LICT. IF THOS E CASES ARE OUT THERE AND IF THEY SU LIED RJ O R SOME OF THOSE WHER E THERE WAS A CONSENTUAL TOUCHING DURING THE EXAM AND TH ER E WAS THE VER BAL R E PORT , SO DO WE, REALLY, NEED TO GET IN AND TRY TO ERR AIS TO ERASE OVER 1 0 ON YEARS OF LAW, GOING BA CK TO 1 89 OVER 100 YEAR S OF LAW, GOING BACK TO 189 3, IN THE CONTEXTTHAT WE ARE TALKING ABO UT?

YOU DON'T HAVE TO IN THIS CASE, YOUR HONOR .

DO WE NOT , IN YOUR OPINION , HAVE TO D EAL WITH THOSE THING YOURSE LF CONCERNED WITH , AS FAR A S TLUNING IS CONF USION OUT THERE , FOR RESOLVE IT, I F THAT IS WHAT NEEDS TO BE DONE.

YES, YOUR HONOR, YOU COULD. YOU COULD CLAR IFY WHETHER WE MEAN REALLY ANY KIND OF TOUCHING AND REALLY MEAN A NYKIND OF IN JURY AR ISE ING FROM THE INCIDENT AS A WH OLE . MS. WILLIS DOES HAVE PHYSICAL SYMPTOMS , BUT HER PRIMARY PROBLEM IS PSYCHOLOGICAL, AND PERHAPS SOMEONE ELSE WHO IS DEVASTATED PSYCHOLOGICALLY , WOULD NOT HAVE THE PHYSICAL SYMPTOMS THAT MS . WILLIS HAS.

LET ME ASK YOU THIS . YOU SAY THAT THERE ARE S OME CLEAR CASES THAT SAY THAT THE SLIGHTEST I MPACT IS ENOUGH. WHAT CASES ACTUALLY SAY THAT , BECAUSE IT SEEMS TO ME THAT THE CASES THAT I HAVE LOOKED AT, REALLY, TALK ABOUT SOME KIND OF INJURY , OR THEY TA LK IN TE RMS OF THE STILLBIRTH KINDS OF CASES AND THOSE THINGS, SO TELL ME A CASE FROM THIS COURT, THAT SAYS THAT THE SLIGHTEST IMPACT I S SUFFICI ENT.

THE CASE FROM THIS COURT THAT SAYS THAT , I S THE DEL CASE, WHICH THE ZELL CASE WHICH C ITES THE CO X CASE , AND THE ZELL CASE INVOLVES IN IMPACT TO THE PLAINTIFF, SO IT REALLY IS DI CTA , BUT THE LANG UAGE IS OUT THERE , AND ZELL TALKS ABOUT THE COX CASE, WHICH IS ASBESTOS FIBER, WHICH IS MICROSCOPIC, AND, ALSO , THE ELECTROCUTION CASE, WHERE IT IS ELECTRICITY. I ME AN, YOU CAN'T GET ANY SMALLER THAN ELECTR ONS .

ON THE B ODY .

YES. DEFINITELY EFFECT ON THE B ODY.

CHIEF JUSTICE: WHAT A BOUTIN HAGAN? THAT WAS SWALLOWING OF COCA-COLA.

AND THIS COURT SAID AND MAYBE THAT IS PART OF THE CONFUSION , THIS COURT SAID THAT IS NOT IMPACT , BUT INGESTION IS OUTSIDE T HE"IMPACT RULE". SO THAT THE COURT L OOKED AT SOME CASES THAT HAD SAID THAT IMPACT INC LUDES INGESTION. BUT THEN COURT SAID THAT IS NOT IMPACT, AND I THINK THAT IS PART OF WHERE SOME OF THE CONFUSION COMES FROM . I THINK THAT IT WOULD BE EXTREMELY HELP FUL , IF THIS COURT WOULD CLARIFY T HE"IMPACT RULE" , BUT HONESTLY , AND I THINK THE PAT TING DO WN OF MS. WILLIS AND LI FTING UP HER CLOTHES, I THINK, WAS , REALLY, AN IMPACT THAT REALLY HAD A HORR IBLE EF FECT ON HER .

CHIEF JUSTICE: YOU WOULDN'T SAY THAT IS A SLIGHT INJURY. I MEAN, THAT IS A SIGNIFICANT BATTERY.

THAT IS VERY SIGNIFICANT.

CHIEF JUSTICE: THAT I S WHY THIS CASE , I GU ESS WELL HEAR FROM MS. KLEIN. I MEAN, I CAN'T IM AGINE A MORE, YOU KNOW , INVASION OF SOMEONE'S PERSONAL BODY , THAN THIS SITUATION.

THAT IS EXACTLY RIGHT , YOUR HONOR.

CHIEF JUSTICE: I MEAN , THERE ARE SOME. I SHOULD N'T SAY I CAN'T. BUT THIS CERTA INLY I S NOT A , YOU ARE NOT SAYING T HIS I S INSIGNIFICANT.

NO. I AM NOT SAYING THAT AT A LL. I AM JUST SAYING THAT , IF SOMEONE HAS A GUN HELD T O THEIR HEAD AND CLIC KED , AND SOMEONE ELSE HAS A GUN OVER HERE AND CLI CKED , IT IS NOT GOING TO BE A WHOLE LO T OF DIFFERENCE, BUT WHAT DOES MAKE THIS CASE WO RSE , WAS THE PH YSICAL INVA SION OF HER BODY .

CHIEF JUSTICE: WHAT DO YOU SEE THE OTHER " OR" IS -OR SIGNIFICANT MANIES FESTTATIONS FROM THE EVE NT" , WHAT DO YOU SEE THIS ON CASE LAW, HAS TO BE THE KINDS , SOMEONE HAD TO HAVE SU FFERED A HEART ATTACK OR DOES, AGAIN, THE KINDS OF THINGS HAD THAT YOU END UP HAVING SLEEPLESS NIGHTS, YOU HAVE STOMACH UPSE T, YOU GET AN ULCER. ARE THOSE U NDER OUR CASE LAW , ENOUGH TO MANIFEST A , B E EXCLUDED FROM THE "IMPACT RULE"?

WELL , IN ZELL IT WAS AN ULCER.

MR. CHIEF JUSTICE: I N Z ELL WE SAID IT WAS O R WAS NOT?

THAT WAS HELD SUFFIC IENT. IN THE CASE THAT INVOLVED THE , I AM SO RRY. I LO SS MY TRAIN OF -I LOST MY TRAIN OF THOUGHT FOR A MINUTE. IN RJ VERSUS HUMA N, A T HECASE THAT INVO LVED THE MISDIAGNOSIS OF AIDS AND THIS COURT SAID ORDI NARY TOUCHING BY THE DOCTOR AND SO FORTH , WOULDN'T BE ENOUGH , BUT TO XIC SIDE EFF ECTS OF DRUGS TAKEN TO TR EAT THE MISDIAGNOSED AI DS, WOULD BE , BUT, THEN , A CASE CAME OUT OF THE SE COND DIST RICT , SUBSEQUENT TO THAT, THAT SAID , WELL , THE NO RMAL SIDE EFFECTS OF MEDI CATION TAKEN FOR PSYCHOLOGICAL INJURY , WOULD NOT BE E NOUGH . SO I THINK IT IS VERY UNCLEAR , AT LE AST IN THE LOWER COURT , WHAT KIND OF PHYSICAL MANIFE STATION I S ENOUGH.

THAT IS AN OTHER PRO BLEM ,, AGAIN , WE HAVE THIS "IMPACT RULE" TO PROTECT AGAI NST FRIVOLOUS CLAIMS, SUOSEDLY . YET SOMEBODY THAT GOES TO A PSYCHIATRIST, GETS MEDICATION. WE HAVE GOT TO DIST INGUISH BETWEEN SOMEBODY THAT MAY BE VERY SOME THAT MA Y HAVE SOME SIDE EFFECTS AND SAY WHETHER THAT IS OR IS N'T.

EXACTLY. IT IS NOT A MEANINGFUL DISTINCTION. IT DOESN'T REALLY HELP TO YOU SORT THE GENUINE CASES FROM THE CASES THAT ARE NOT GENUINE.

WHAT WOULD BE A , WHAT WOULD BE YOUR POSITION ON WHAT WOULD BE A WAY TO DO THAT?

WELL , THERE IS A COU PL E OF WAYS THAT WE HAVE ADVOCATED IN OUR BR IEF. I THINK THIS CASE, IN PARTICULAR, BECAUSE IT ARISES OUT OF INTENTIONALTORTS THAT ARE RECOGNIZED IN THE COMMON LAW, WHETHER THERE IS INJURY OR NOT , ASSAULT AND BATTERY, THAT IS A EASY WAY TO DE CIDE T HIS CASE. THIS COURT COULD JUST SAY

BUT AN INTENTIONAL TORT AS REGARDS THE HOTEL.

RIGHT. THE HOTEL DID NOT COMMENT INTENTIONAL TORT BUT THE HOTEL IS RESPONSIBLE FOR THE DAMAGES RISE RING FROM THE INTENTIONAL TORT .

RISI NG FROM THE INTENTIONAL TORT.

VIS-A-VIS THE NEGLIGENCE CASE .

CHIEF JUSTICE: WHICH ISNOT A FALSE CLAIM.YOU HAVE GOT A SITUATIONWHERE SOMEONE HAS BEEN TOUCHED IN AN ASSAULT AND BATTERY , BUT THAT HEL PS THIS CASE, BUT AS JUSTICE WEL LS IS ASKING, HOW , THEN , WOULD YOU TAKE EVERY OTHER CASE THAT , IN RJ , THOSE SIT UATIONWHERE IS YOU ARE TRYING TO PREVENT ALL OF THESE TORT CLAIMS FROM BEING BROUGHT?

I THINK YOU COULD DO IT BY ABOLISHING THE "IMPACT RULE". THE AM ICUS HAS CITE A DDNUMBER OF CASES FROM OTHER JURISDICTIONS, ALL OF WHICH OBSERVED THAT, IN JURISDICTION THAT IS HAVE ABOLISHED THE "IMPACT RULE" , THERE HAS NOT BEEN THIS FLOODGATES PROBLEM THAT THE COURTS HAVE BEEN CONCERNED WITH .

HOW DO WE KNOW THAT ARE THERE STUDIES DONE? ARE THERE LAW REVI EW ARTICLES?

THE CASES THAT SPECIFICALLY CI TE THAT ARE THE KEMPER C ASE OUT OF TENNESSEE IN 19 96 , THE BASS CASE FROM MISS OURI IN 1983 AND THE NEEDER MAN CASE OUT OF PENNSYLVAN IA I N 19 70 , AND EACH TIME THERE HAVE BEEN MORE JURISD ICTION ABOL ISHED . THE "IMPACT RULE" , I KN OW THERE WAS AT LEAST ONE LAW REVIEW AR TICLE THAT THEY A LLCITE, BUT THERE HAVE BEEN N O OTHERS. THERE IS NO EVID ENCE HE RE IN THIS RECO RD THAT , THERE WOULD BE FLOODGATES . THE COURTS ARE NOT FL OODED RIGHT NOW, WITH ASSAULT AND BATTERY CASES , AND THE COURTS HAVE A LOT O F T O OLS THAT MAY BE , AT THE TIME T HE"IMPACT RULE" WAS CREATED , THEY DIDN'T HAVE O R W ANT CLEAR. THERE IS 57.10 5, IF IT IS A FRAUDULENT CLAIM. THE COURT'S INHERENT AUTHORITY T O DISMISS OR SANCTION FRAUD ULENT CLAIMS, THAT IS AN AREA OF LAW THAT IS NOW VERY WELL SET OUT.

HOW DO YOU PROVE A FRAUDULENT CLAIM, IFSOMEBODY IS ALLEGE ING PSYCHOLOGICAL D AMAGE ? HOW WOULD ANY DEFENDANT WHO SEEKS DISM ISSAL OF THE CLAIM AS FRAUDULENTLY FI LED , BE ABLE TO DO SO , IF IT IS STRICTLY PSYCHOLOGICAL INJURY?

WELL , THE COURT , FOR EXAMPLE , COULD REQUIRE MEDICAL OR PSYCHOLOGICAL EXPERT TESTIMONY. THAT WOULD BE ONE WAY. THE COURT COULD REQ UIRE CORROBORATING EVIDENCE THAT THE EVENT OCCURRED. AN EXAMPLE

BUT OUTSIDE OF REQU IRING SOME PH YSICAL , IN THAT LAND OF SP IRIT ALTERNAT E OR WHATEVER, THE PHRASE OF SAUNDERS, OVER 1 00 YEARS AGO , BECAUSE YOU KNOW, MOS T OF THIS IS SE LF REPO RTING OF THE P ERSON TO THE PSYCHOLOGIST AND PSYCHOTHERAPIST OR PSYCHIATRIST. THAT IS IN ANY PHYSICAL MANIFESTATI ON.

THAT IS TRUE. YOU KNOW, I THINK THAT THAT IS A DIFFICULTY . AND I ADMI T THAT THAT IS A DIFFICULTY, BUT W E HAVE JURIES.

CHIEF JUSTICE: I G UESS PLAYING THE DE VIL ' AD VOCATE WITH JUSTICE BELL , I MEAN, IN IN THIS SITUATION SHE WAS HIT AND THEN SHE DECIDESTHAT SHE HAS GOT HEADACH ES AND GOES TO A DOCTOR AND REPORTS HEAD ACHES , WE ALLOW THAT TO GO TO THE JURY. I MEAN, TO ME THAT MIGHT BE MORE FRIVOLOUS THAN SOMEBODY WHO, I MEAN , I THINK THAT WHAT WE ARE ST ILL STRUGGLING WITH HERE , IS THIS T RUSTTHAT PEOPLE THAT HAVE GENUINE PSYCHOLOGICAL IS SUES OR MENTAL ISSUES , AND T HEREIS A REPORT OUT , THE REPORT THAT A LOT OF PEOPLE SUFFER FROM MENTAL ILLNESS IN T HIS SOCIETY, THAT WE HAVE , SOMEHOW THAT THAT IS A, WE ARE GOING TO SEE THAT AS LESSER INJURY THAN SOMEBODY THAT MIGHT HAVE HAD A PHYSICAL CONTACT, BUT M Y CONCERN IS , AS I LO OK AT THIS CASE L IKE SOUN DERS THAT STARTED THIS ALL , I AM NOT E VEN SURE WHER E THAT C ASE WOULD BE TODAY, IF W E HAD A N IMPACT, DIDN'T HAVE A "IMPACT RULE". IT WAS A NEGLIGENT HANDLING OF A TELEGRAM . THE PLAINTIFF WAS UNA WARE THAT THE WIFE WAS DEATHLY ILL. I MEAN, PROBABLY, I SN'T THAT JUST A SITUATION THAT WOULD BE HANDLED BY FORESEEABILIT Y AND SAY THAT THERE IS , REALLY, NOT , THE DUT Y DID NOT EX TEND TO THESE TYPES OF DAMAGES.I MEAN , IT SEEMS TO ME THAT IS SO MUCH MORE MEANINGFUL. A LOT OF THESE CASES LIKE THIRD PARTY BYSTANDERS, WOULD NOT BE RECOGNIZED , I THINK, EVEN IF YOU DIDN'T HAVE A KBABLINGT RULE , AND A "IMPACT RULE" , AND THAT WOULD BE , IT SEEM S TO ME, A BETTER CONSTRUCT, THAT YOUR TORT LAW TAKES CARE OF MOST OF THOSE KIND OF ODD CASES.

I THINK THAT IS T RUE , AND I THINK WHAT YOU GET WITH THE "IMPACT RULE" , IS DRAWING ARTIFICIAL LINES THAT, REALLY , WEED OUT A L OTOF THE REAL SERIOUS INJURIES. AN EXAMPLE, IS

LET ME GO BA CK TO THIS LINE DRAWING. I MEAN , HERE , YOU HAVE A SITUATION IN WHICH THIS PLAINTIFF WAS IN A PARKING LOT , AND NOW WAS THERE A WITNESS TO THIS ASS AULT ?

NO.

SO YOU HAVE , REALLY , HER STATEMENT THAT SHE WAS ASSAULT ED. IS THAT RIGHT? DO YOU HAVE ANY PHYSICAL EVIDENCE THAT SHE WAS ASSAULTED?

THE CAR WAS STOL EN.

ANY PHYSICAL EVIDENCE THAT SHE WAS TOUCHED?

NO. THERE IS HER TESTIMONY.

HER TESTIMONY.

YES , YOUR HONOR.

SO HER TESTIMONY IS THAT SHE WAS TOUCHED.

YES.

AND HER TESTIMONY IS THAT SHE WAS INJURED .

YES.

CORR ECT ? NOW , I TAKE IT THAT , FROM WHAT I HAVE READ HERE , THAT THERE WAS SOME PHYSICAL MANIFESTATION THAT SHE HAD HAD SOME TYPE O F TR AUMA I N THAT SHE DID HAVE SOME PHYSICAL FINDINGS. CORRECT?

YES, YOUR HONOR.

BUT IF SHE HAD NO PHYSICAL FINDINGS AND WE WERE LEFT WITH JUST TESTIMONY OF THE PSYCHIATRIST, REALLY, T HEONLY THING WE HAVE IS THE TESTIMONY OF THE PER SON THAT IS IN THE PARKING LOT. CORRECT?

YES. AND YOU HAVE

THAT IS WHAT THE PSYCHIATRIST RELIES ON.

YES, AND YOU HAVE THE JURY, TO SEE THE WITNESS. THIS COURT WAS JUST TALKING ABOUT, IN THE LAST ARGU MENT, THE IMPORTANCE OF HAVING , OF BEING ABLE TO SEE THE WITNESSES. A JURY SEES THE WITNESS ES AND EVAL UATES THEIR CREDIBILITY . I THINK THAT OUR SYSTEM RELIES VERY HEA VILY ON JURIES, AND I THINK PRO PERLY SO .

BUT ISN'T THAT BE , ISN'T , THE SITUATION THAT I DESCRIBED , THE SITUATION THAT THE "IMPACT RULE" WAS DESIGNED TO SAY THAT, IN THAT SITUATION, THAT THE COURT S Y STEM C A NNOT RESPOND , BECAUSE THERE ISN'T A RELIABLE BA SIS TO MA KE A DETERMINATION OF THE INJURY.

WELL, THAT M AY BE WHAT IT WAS DESIGNED FOR, BUT THAT IS NOT HOW IT WI NDS U P. YOU HAVE GOT CASES LIKE THE ARDETE CASE THAT JUST CAME OUT OF THIRD DIS TRICT, WHERE THE LADY GOT STUCK IN AN ELEVATOR AND HAD A HEART ATTACK, AND THE COURT SAID, WELL, IF A HEART ATTACK COMES FROM BEING STUCK IN AN ELEVATOR, THERE IS NO IMPACT AND THEREF ORE THERE IS NO RECOVERY, BUT IF A HEART ATTACK CAME IN PART FROM JUMPING OUT OF THE E LEVATOR , THEN YOU HAVE GOT RECO VERY. WELL, THEN, YOU ARE FORCING YOUR EXPERTS TO KIND OF SQUEEZE THEIR CASE INTO , SQUEEZE THEIR TESTIMONY INTO THAT BOX. YOU KNOW, I TALK ABOUT T HESITUATION IN MY BRIEF.IT IS EXA CTLY WHAT IS GOING ON IN ALL OF THE CASES THAT TALK ABOUT ABOLISHING T HE"IMPACT RULE". THEY ALL SAY THAT. WHAT YOU GET IS CRE ATIVE PLEADINGS AND CREA TIVE TESTIMONY, TO TRY TO FIT INTO THE "IMPACT RULE" , AND THERE REALLY OU GHT TO BE A BETTER WAY .

CHIEF JUSTICE: YOU ARE VERY MUCH IN YOUR REBUTTAL. I WA NT TO MAKE YOU AWA RE OF THAT.

THANK, YOUR HONOR. WE WOULD ASK THE COURT TO REVERSE AND REMA ND THIS CASE FOR A TR IAL ON THE MERI TS.

CHIEF JUSTICE: MS. KLEIN.

GOOD MOR NING . BEHIND A KLEIN HERE ON BEHALF OF G AMI GOLDEN GLADES , AGE BE PRESE NTING THE ARGUMENT , AND WITH ME TODAY IS MR. MORGAN HAD, WHO IS COUNSEL FOR AMERICAN SECURITY. THERE IS NO REASON WHY THIS CASE IS BEFORE THIS COURTNOW.THERE IS NO OING HAS CHANGED IN THE LAST TWO - - THERE IS NOTHING THAT HAS CHANGE D IN THE LAST TWO AND-A-HALF YEARS , SINCE THE GRA CIE CASE REAFFIRMED THE VIAB ILITY O F THE "IMPACT RULE" .

CAN I ASK A COUPLE O F QUESTIONS.THIS RULE IS ALWAYS REFERRED TO AS THE "IMPACT RULE" , IS IT NOT?

THAT'S CORRECT.

ARE YOU AWARE OF ANY STATE ANYWHERE , ANY COMMON LAW , REFERRING TO IT AS THE DEMONSTRABLE INJURY RULE ?

NO , I AM NOT .

AND DO YOU AG REE THAT , IN THE DECI SION FROM INTERNATIONAL SAUN DERS AND , CANY IN 19 50 AND IN AND KIRKSY IN 1950 , THAT THIS HAS ALW AYS BEEN BUILT O N IMPACT, NOT A QUESTION O F DEMONSTRABLE INJURY. DO YOU AGREE WITH THAT?

I LOOK OF THAT THE I BELIEVE THAT THE CONCEPT OF DEMONSTRABLE PHYSICAL INJURY HAS ALWAYS BEEN IMPLICIT IN THE "IMPACT RULE".

WELL , CAN YOU P OINT TO ME A CASE WHERE THIS DEVELOPEDFROM, BECAUSE AS I READ THE CASES, THIS DEMONS TRABLE INJURY CAME IN CASES OF NO IMPACT, AND IF YOU HAD NO IMPACT, THEN YOU WERE GO ING TO REQUIR E THEM TO SHOW SOMETHING, BUT IT WAS NEVER , IN ANY OF THE HISTORICAL CASES, I HAVE GONE THRO UGH VERY CAREFULLY, AL IED WHERE THERE WAS AN IMPACT, HOWEVER SLIGHT OR HOWEVER LARGE.

WELL, I THINK THAT IS ON E OF THE PRO BLEMS THAT WE DO HAVE HERE , IS THAT, THROUGHOUT THE YE ARS , T HE"IMPACT RULE" AND THE BYSTANDER RULE HAVE SORT OF MELDED TOGETHER, AND OOSING COUNSEL HAS ARG UED , BEFORE BOTH THE AELL ATE AND TRIAL COURTS, THAT IT IS ONE AND THE SAME AND IT CAN IS CLEARLY NOT. IN THE BYST ANDER RULES , WHERE THERE I S CL EARLY IMPACT BECAUSE THE BYSTANDER WAS NOT THE PERSON INV OLVED IN THE INCI DENT , THEN T HEREIS THE REQUIREMENT OF A DEMONSTRATIVE PHYSICAL INJURY AR ISING FROM EMOTIONAL DIST RESS.

WHERE THERE IS NO IM PACTON THAT PERSON.

THAT'S CORRECT. OBVIOUSLY, IN ORDER TO H AVE A BYSTANDER RULE , THERE WOULD HAVE TO BE THAT ADDITIONAL EL EMENT , BUT , YOUR HONOR , I N THE ROLLECASE, DE FINED THE "IMPACT RULE" NOT A BYSTANDER RULE.

THAT WAS A NONI MPACT CASE, CORRECT?

THAT , IT WAS , YES , THAT'SCORRE CT.

THE PROB LEM WE GET IS THE RULE FROM NONIMPACTCASES, TO SAY WH AT THE RULE IS WHEN THERE IS A TOUCHING. THAT IS WHERE WE SEEM TO HAVE A PROBLEM. IS THERE A CASE, FOR EXAMPLE , WHERE SOMEONE, NO ONE ELSE SEES IT BUT ONE TRI PS OVER A ROOT ON PROPERTY AND HAS A FALL DO WN . AND NO ONE ELSE SEES IT. THERE IS NO BR UCING O R ANY THING.IS THERE ANY RULE OF LAW I N THAT KIND OF CASE, T HAT SAYS, NO, YOU CAN'T RECOVER IN A FALL DOWN KIND OF CASE .

NO , BECAUSE, THEN , YOU HAVE THE ADDITIONAL ELEMENT OF A DEMONSTRATIVE PHYSICAL INJURY.

NO.I AM SAYING YOU FELL DOWN. THAT WAS T THAT IS THE EXTENT. THEORETICALLY YOU WOULD HAVE A CAUSE OF ACTION , WOULD YOU NOT?

NO.

YOU HAVE TO HAVE A DEMONSTRABLE INJURY IN A SLIP AND FALL CASE , BEFORE, THAT IS YOUR VIEW, BEFORE THERE IS A CAUSE OF AC TION.

ABSOLUTELY. OTHERWISE , O THERWISE

WOULD YOU SHARE WITH US A CASE THAT WOULD HOLD THAT.

THAT THERE HAS TO BE A PHYSICAL INJURY ARISING .

A DEMONST RABLE INJURY. ANY KIND OF TORT T HAT WE HAVE OTHER THAN NO FAULT. WE HAVE LIMITED THAT. BUT IN THE COMMON LAW , FOR TRESPASS TO THE PERSON, T HAT THERE MUST BE A DEMONSTRABLE INJURY AS PART OF THE ELEME NT FOR THE CAUS E OF ACTION FORM AND , SEE , I AM NOT FIN DING ACTION. AND , SEE , I AM NOT FINDING IT WHERE WE ARE AT.

NO, I DON'T , I WOULD AGREE WITH YOUR HONOR , BUT I THINK THAT IS IMPL ICIT I N THE "IMPACT RULE", THAT, WHERE THE SOLE INJURY IS PSYCHOLOGICAL AND NOT RESULTING FROM A PH YSICAL INJURY, THAT IS WHERE W E DRAW THE LINE . I WOULD AGREE WITH THE COURT , THAT TO SOME EXTENT , I T IS ARBITRARY. A LOT OF BR IGHT LINE RULES ARE ARBITRARY. WHAT IS THE DIFFERENCE BETWEEN A STATUTE OF LIMITATIONS AT FOUR YEARS AND THREE YEARS AND 3 54 DAYS ? THAT IS A BRIGHT-LINE RULE. THE TORT THRESHOLD IS A BRIGHT-LINE RULE. THEY ARE GOING TO BE

COURT THRESHOL D. AREN'T WE TA LKING IN THIS CASE, FOR INSTANCE, ABOUT A NEGLIGENT BREACH OF SECURITY. IN OTHER WORDS, A SECURI TYCASE, RIGHT? THAT IS THE DUTY ON THE PART OF, WHAT IT A HO TE L OR MOTEL?

HOTEL.

OKAY. IN OTHER WORDS, WE ARE TALKING ABOUT YOU DI DN'T PROVIDE THE SEC URITY THAT A REASONABLE HOTEL OR WHATEVER , WOULD HAVE PROVID ED. YOU BREACHED THAT DUTY , THAT YOU O WED TO ME , RIGHT ? ISN'T THAT WHAT THIS CASE IS?

YES AND NO , YOUR HONOR. I , YES , IT IS A NEGLIGENCE SECURITY CASE.

HOW WOULD YOU PLEAD IT?

PLED AS A NEG LIGENT SECURITY CASE BUT I T HAENED OFF PREM ISES.

I THAT REALIZ E.

I AM SPLITTING HA IRS.

HOW THAT WORKS ITSELF OUT , WHETHER THEY CAN PROVE ACAUSE OF ACTION , BUT HE LP M E WITH WHY I N THE WORLD WOULDN'T THIS PERSON WHO HAS BEEN ASSA ULTED , L ET'S BRING IT BACK OVER INTO THE PARKING LOT OF THE HOTEL , AND YOU KNOW , AND THERE WAS A BREACH OF SECURITY OR WHATEVER , BEEN ASSAULTED AND HER CAR TA KEN AWAY FROM HER, AND IF WHAT SH E SAYS IS TRUE , THE GUN STUCK T O HER HEAD O R A GUN STUCK IN HER FACE FOR THAT MA TTER, YOU KNOW, WHY IN THE WORLD WOULD SHE NOT BE ENT ITLED TO A CAUSE OF ACTION HERE AGA INST THE HOTEL? OF COURSE ASSU MING THAT THEY DID BREACH THE DUTY HERE. YOU KNOW, THIS WHOLE COUNTRY HAS BEEN IN DE BATE ABOUT TORTURE AND THE PSYCHOLOGICAL, AND DOING AL L THAT KIND OF T HING , AND , OFCOURSE, THE CLAS SIC THING IS PUT AGO GUN TO SOMEBODY'S HEAD AND CLICK. MY GOD. HOW ANYBODY EVEN SURVIVES THAT OR R E TAINS THEIR SANITY. SO TELL ME , INC LUDING T HEFACT THAT THE GUN TOUCHED HER HEAD , AND THE OTHER PHYSICAL CONTACT THAT WAS HERE, WHY SHE IS NOT ENTITLED TO RECOVER AND WHAT , I AM HAVING DIFFICULTY I N THIS PARTICULAR CASE , WITH THE EXIS TING LAW OF HOW YOU CAN SAY THAT THERE IS NO CAUSE OF ACTION HERE.

BECAUSE THE CAUSE OF ACTION, THE ULTIMATE CAUSE OF ACTION FOUND IN NEGLIGENCE, NOT IN INTENTIONAL TORT , AS JUSTICE CANTERO NOTED , HOW IT , AGAIN, DID NOT PUT A GUN TO THIS WO MAN 'S HE AD!

BUT IF HE BUT IF WE ARE CONCERNED ABOUT PUTTINGAN IS SUE TO NEGLIGENT CLAIMS , LET'S SAY SHE LIED ABOUT THIS WHOLE THING. OF COURSE ANY PLAINTIFF COULD SAY THAT, AS JUSTICE LEWIS SAID, IF SHE SLIED AND FELL ON YOUR PARKING BUMPER THAT WASN'T SUOSED TO BE THERE, MAYBE SHE DIDN'T. MAYBE SHE REALLY GOT IT WHEN SHE WAS HOME. WE HAVE GOT THAT CYNICISM, AND, AGAIN , SOMETIMES THAT HAENS , BUT RARE LY. SO WHY, T H OUGH , W IT H THIS GENUINE CRIMINAL A T TACK , WITH THE TOUCHING , WOULD A NYOF THE POL ICIES THAT LE D TO THE "IMPACT RULE" IN THIS STATE OVER 1 00 YEARS AGO , BE FURTHERED BY DISALLOWING THIS CLAIM, AS OO SED TO THE OOSITE, WHICH IS WE KNOW THAT A CRI MINAL ACT OCCURRED, AND NOW THE ISSUE, REALLY, IS , REALLY FO CUSED ON IS YOUR CLIENT , ARE YOUR CLIENTS RESPONSIBLE FOR THAT , BECAUSE THAT , THE REAL DILEMMA, BUT AS FAR AS FOR THE SAKE OF THE SYSTEM , THE FACT THAT THIS WAS AN INTENTIONAL TOUCHING , IS WHAT SH OULD TAKE IT OUT SIDE OF THE "IMPACT RULE" , A NDWHAT IS YOUR RES PONSE TO THAT?

THE RESPONSE TO THAT IS THE BASIC SLIERY SLOPE ARGUMENT. WHAT IS THE DIFF ERENCE BETWEEN BEING TOUCHED WITH A GUN OR HAVI NG THE GUN TW O INCHES FROM YOUR HEAD OR FOUR INCHES FROM YOUR HEAD OR NOT HAVING A GUN PO INTED AT YOU AL AT ALL BUT STILL BEING THE V ICTIM AFTER CRIME, FOR EXAMPLE HAVING YOUR CAR STOLEN. WHERE ARE YOU GOING TO DRAW THE LINE?

CONVI CTED AFT L EASTASSAULT AND BATTERY, RIGHT?

WELL , ASSAULT.

AT LEAST ASSAU LT AND BATTERY. IS THE BATTERY COMMITTED WHEN THE GUN TOUCHES A HEAD? IS AN AS ALL THE QUITO-AN ASSAULT COMMITTED WHEN AWE IS ASSAULT COMMITTED WHEN YOU TOUCH THE HEAD AND BATTERY WHEN YOU CARRY OUT THAT THREAT ? SO WE HAVE AN ASS AULT AND BATTERY.IF YOU ALL AGREE AND SHE IS TELLING THE TRUTH AND YO U ARE ABLE TO SHOW THAT IT WAS HER HUSBAND O R BOYFRIEND THAT DROVE OFF WITH THE CAR AND SHE MADE ALL THIS U P,THEN, YOU KNOW , THERE IS NOT GOING TO BE ANY CLAIM, B UTYOU ARE NOT TA LKING ABOUT THAT, ARE YOU?

IT IS TOO EARLY IN T HECASE TO TELL , JU DGE.

THERE IS NO AEARANCE OF THAT.

NOT ON THIS RECORD, NO.

THAT WILL TAKE CARE OF ITSELF, WILL IT NOT?

THAT WILL TAKE CARE OF ITSELF, BUT THE PROBLEM IS NOT SO MUCH PROV ING OR DISPROVING THE TORT , WH ICH IN YOUR EXAMPLE , A GAIN , IS NOT COMMITTED BY THE HOLIDAY INN.IT IS COMMITTED BY A CRIMINAL.

SO THE GUN CAUSED A SCRATCH ON HER, IS T HAT GOING TO BE EN OUGH CONTACT?

BASED ON THE BRIGHT-LINE TEST , THE TEST GOING BACK OVER 100 YEARS, YES, THATWOULD BE ENOU GH.

I SE E.

CHIEF JUSTICE: JUSTICE CANTERO.

WHEN WE TALK A BOUTBRIGHT-LINE TEST S AND ARBITRARINESS IN DRAWING THE LINE, HAVEN'T W E DRA WN THE LINE AT THE FACT THAT Y OUHAVE PUT THE GUN AND TOUCHED THE HEAD WITH THE GUN? ISN'T THAT ENOUGH OF AN IMPACT, UNDER OUR CASE LAW, OR DO WE NEED SOMETHING ELSE?

I BE LIEVE WE NEED SOMETHING ELSE. I BELIEVE, UNDE R THE MOS T RECENT DEFI NITION OF THE "IMPACT RULE" AND THE R OLLE CASE, THERE HAS TO BE A PHYSICAL INJURY SUFF ERED A S A RESULT OF AN IMPACT , AND THE EMOTIONAL DISTR ESS DAMAGES MUST FLOW FROM THAT PHYSICAL INJURY .

SO , REALLY, WHAT WE HAVE TO FI GURE OUT IS WHETHER OUR RULES REQU IRE IMPACT ON LY, WHICH I GUESS YOU CONC EDE THE IMPACT EXIS TS, O R WHETHER IT REQUIRES, THEN , PHYSICAL INJURY AS A RESULT OF THE IMPACT.

I THINK THAT THE "IMPACT RULE" HAS ALWAYS REQUIRED THAT DEMOSTRATIVE PHYSICAL INJURY , AT LEAS T IN T HETHEORY, BUT OVER THE YEARS , WHILE CERTAIN COURTS HAVE WANTED TO E RODE IT OR TO G ETAROUND IT , THEY HAVE FOC USED ON THE PH RASE "IMPACT" , TO SIMPLY ARGUE THAT THE MERE TOUCHING IS SUFFICIENT . BUT IN E ELITY BUT IN REALITY, IN ORDER TO M EET GOALS OF THE "IMPACT RULE" , TO MAKE IT SOME WHAT AN ARBITRARY RULE FOR WE EDING OUT THOSE CASES WHICH ARE MOST LI KELY TO BE FRAUDULENT, THE DEMONSTR ATIVE PHYSICAL IMPACT INJURY PORTION OF THE RULE IS IMPERATIVE , AS PART AND PARCEL OF THAT RULE. OTHERWISE THE EXCEPTIONS WOULD SWALLOW THE RULE , AND WE

HASN'T THAT , REALLY , SO RT OF HAENED OVER THE YEARS? WE HAVE MADE EXCEPTIONS AND SAID IT DO ESN'T ALY, WHEN YOU ARE , INGEST SOMETHING , WHEN YOU HAVE A STILLBIRTH , LEGAL MALPRACTICE AND SO ON AND SO ON , SO AREN'T WE REALLY AT THE POINT THAT THE PETITIONER IS ARGUING HERE, THAT, REALLY , WE SHO ULD JUST ABOLISH THE "IMPACT RULE"AND, MAYBE, MOVE TO SOME OTHER FORM OF T RYING TO WEED OUT THESE FRIVOLOUS CLAI MS FROM REAL EMOT IONAL DIST RESS CLAIMS.

WELL , THE PROBLEM WI THTHE OTHER AROACH IS SUGGESTED BY JUSTICE PARIENTE, AND JUSTICE ANSTEAD , AND FOR EXAM PLE THE FORESEEABILITY ANAL YSIS IS THAT IT LEAVE S THIS WHOLE CONCEPT , UP TO THE DISCRETION OF JUDGES AND THE VAGUERIES OF AN INJURY .

BUT ISN'T THAT WHAT WE DO IN NEGLIGENCE CASES ALL THE TIME? I MEAN, IS N'T THAT A N ELEMENT OF ANY OTHER K IN D OF NEGLIGENCE CLAIM THAT I S BROUGHT?

IT IS TO THE EX TENT THAT YOU CAN ARGUE ABOUT WHETHEROR NOT A PARTIC ULAR INJURY WAS FORESEEABLE. THE PROBLEM WITH FOCU SING O N WHETHER OR NOT EMOTIONAL DISTRESS WAS THE FORESE EABLE RESULT OF THE TORT , THAT ARGUMENT WOULD SWALLOW THE RULE. ANYBODY COULD ARGUE IN ANY CASE, THAT EMOTIONAL DISTRESS NECESSARILY RESULTS FROM SUFFERING A TORT .

CHIEF JUSTICE: I AM STILL HAVING TROUBLE, I GUESS, TO GO BACK WITH WHETHER WE ARE GOING TO ABOLISH THE "IMPACT RULE" OR KEEP IT IN THI S CASE, WHAT IT MEANS , AND MAYBE IT IS FOLLOWIN G UP WITH WHAT JUSTICE CANTERO AND JUSTICE LE WIS SA ID. WHERE ARE YOU SA YING THAT, IN OUR CASE LAW , THAT WE HAVE SAID THAT THE DISCERNIBLE PHYSICAL INJURY HAS TO FLOW FROM THE IMPACT, AS OP POSED TO THAT THERE EITHER IS AN I MPACT AND THEN YOU GET THE D AMAGES , OR I N THE ABSENCE OF ANY IMPACT , THERE HAS TO BE A DISCERNIBLE PHYSICAL INJURY OR ILLNESS FLOWING FROM THE EMOTIONAL DISTRESS .

IN RO LL E AND , IN THE ROLLE CASE , WHICH , AGAIN , WAS NOT ON E OF THOSE CASES , NEVERTHELESS THE DEFINITION OF THE "IMPACT RULE" IS SET FORTH IN THAT CASE , WAS BEFORE A PLAINT IFF CAN RECOVER DAMAGES FOR EMOTIONAL DISTRESS , THE EMOTIONAL DISTRESS MUST FLOW FROM PHYSICAL INJURY SUSTAINED IN THE IMPACT. THAT WAS THE DEFINITION USED BY THIS COURT IN ROLLE VERSUS HOLT . NOW , I WOULD AG REE

I WRO TE THAT OPINION.

CHIEF JUSTICE: I CLARIFIED IT IN MY CONCURRENCE. I HAVE NE VER, AND, AG AIN, I AM SU RE THAT THAT WAS REFERRING TO THE TYPE OF ACTION THAT WAS BEING BROUGHT, BECAUSE I DON'T THINK THERE HAS EVER BEE N A CASE THAT DOESN'T SAY , I MEAN, UNLESS IT IS CON FUSED , IT IS AN EITHER/OR SITUATION, SO OBVIOUSLY WE HAVE TO CLARIFY FOR SURE.

AND I ABSOLU TELY THINK THAT, IF THIS COURT DECIDES TO WRITE AN OPI NION , CHING , OF COURSE, IS COMPLETELY DISCRETIONARY WITH THE COURT BECAUSE IT IS HERE ON A CERTIFIED QUE STION , IF THE COURT DOES THAT , I WOULD AGREE THAT THERE NEED S TO BE SOME CLARIFICATION. IN REVI EWING THE RECENT EXCEPTIONS TO THE "IMPACT RULE" , IT HAS BEC OME INCREASINGLY DIF FICULT TO SEE WHERE THAT BR IGHT LINE EXISTS.

CHIEF JUSTICE: I DON'T KNOW THIS THI RD DIS TRICT CASE, WHERE SOMEBO DY HAD , IN AN ELEVATOR THAT WAS ST URX HAD A , SUFFERED A HEART ATTACK, AND THE THAT W ASSUCCESS, HAD SUFFERED A HEART ATTACK AND THE THIRD DISTRICT SAID THAT WAS NOT WITHIN THE "IMPACT RULE"?

IT WAS NOT WITHIN THE"IMPACT RULE", UNLESS THE PLAINTIFF COULD DEMONSTRATETHAT THE HEART ATTACK RESULTED FROM JUMPING OF F THE ELEVATOR . NOW, I THINK - -

CHIEF JUSTICE: YOU HAVE BEEN A VERY ACCOMPLISHED AELLATE ADVO CATE , THAT THAT KIND OF MAKE S THE LAW LOOK A LI TTLE RIDICULO US, DOESN'T IT?

I ABSOLUTELY AGREE , AND I THINK WHAT THE COURT NEEDS TO DO IS, BECAUSE IT HAS , OVER AND OVER AND OVER AGA IN, REAFFIRMED THE VIABILITY OF THE "IMPACT RULE" , IS TO GO BACK AND TO MAKE THAT BRIGHT LINE, AND TO EX PLAIN TO THE COURTS, ONCE AND FOR ALL, FIRST OF ALL , THAT THERE IS A DIFF ERENCE BET WEEN ALICATION OF THE "IMPACT RULE" , WITH RES PECT TO THE PLAINTIFF WHO WAS INVOLVED IN THE INCIDENT , VE RSUS THE BYSTANDER RULE, WH ICH I THINK IS PART OF THE CONFUSION , AND , AL SO, TO CLARIFY THAT , WHILE THERE MAY BE EXCE PTION S FOR PU BLIC POLICY REASONS OR STATUTORY REASONS , THAT IT IS FOR THIS COURT TO MAKE THOSE EXCEPTION S, AND NOT FOR THE LOWER COURTS ON A CASE BY CASE RESULT-ORIENTED DECISION. THAT IS A LOT OF THE PROBLEM.THE PROBLEM IS NOT WITH T HE RULE. THE PROBLEM IS WITH THE ALICATION OF THE RULE. THE PROBLEM IS WITH THE COURTS REND ERING RESULT-OR GENT ED RESULT-ORIENTED DECISIONS, AND LIKE IN THE THIRD DISTRICT CASE , GOING THROUGH MENTAL GYNMASTICS , TO GET TO WHERE THEY WA NT.

CHIEF JUSTICE: BECAUSE IF THE REASON FOR THE RULE WAS TO WEED OUT CLAIMS THAT REALLY DI DN'T BELONG IN THE TORT SYSTEM AND THE JUDGE SEES THE CLAIM IN FRONT O F HIM OR HER THAT WE KNOW IS LEGITIMATE. WE UNDERSTAND THERE IS A PSYCHOLOGIST OR PSY CHIATRIST THAT IS TESTIFYING. WE HAVE THE S ENSE THAT T HEPERSON IS REALLY SUFFERING FROM VERY SIGNIFIC ANT EMOTIONAL INJURIES, THAT THERE IS JUST A DISCOM FORT TO SAYING THAT THAT, THE COURT HAS , THE DOOR IS CLOSE TO DO THAT P ERSON , WHEREAS YOU KNOW IN THE NEXT CASE , SOMEBODY HAD A SLIP AND FALL AND YOU KNOW , STRA INED THEIR ARM AND I S BACK TO WORK AND THAT IS COMING IN. I MEAN, YOU KNOW , I WOULD PROBABLY RATHER GET RID OF SLIP AND FALL S THAN THESE CASES, IF WE WERE GOING T O WEED THEM OUT. I AM SURE YOU WOULD LIKE THAT, TOO, BUT I JUST THINK THAT THAT IS WHERE THE DISCOMFORT IS, IS MA YBE IT GOES BACK TO WHAT MS. GREEN SAID, IS IT IS NOT THE WAY IN THIS CUR RENT 21 st CENTURY, WHERE WE UNDERSTAND THERE ARE MENTAL ISSUES , PSYCHOLOGICAL ISSUES THAT , WE SH OULD HAVE THIS ANTIPHANY TOWARDS THOSE KINDS OF ISSU ES THAT , IF SOMEBODY STRAINS THEIR ANKLE THAT, THE COURT HOUSE DOOR I S OPEN TO THEM AND THAT IS WHAT JUDGES ARE STRUGGLING WITH.

THAT IS TRUE , BUT IF ANYTHING, WE ARE A FAR MORE LITIGIOUS SOCIETY THAN WE HAVE EVER BEEN AND AN YONE CAN PAY AN EXPERT TO S AYANYTHING IN ANY CASE.

ISN'T THAT ALSO A PROBLEM? ISN'T THIS , DOESN'T T HIS RULE SORT OF PUT PE OPLE IN A CIRCUMSTANCE OF HAVING TO FIND AND SAY, W ELL , YOU BETTER GO GET THIS K IND OF TESTIMONY , BECAUSE OTHERWISE YOU ARE GOING TO BE BA RRED , AS OP POSED TO KIND OF JUST SAYING, LIST EN, THERE MAY BE AN INJURY OR MAYBE THIS IS JUST A DE MINI MUS SITUATION TAKE OCCURRED . YOU KNOW, BE ING A VI CTIM O F ASSAULT AND BATTERY, MAYBE A LOT OF PE OPLE GO ON WITH THEIR LIVES AND ARE NOT TRAUMATIZED BY IT. MAYBE THE AN SWER IS THE TORT ITSELF. THE LEGISLATURE HAS BEEN CONSIDERING WHETHER THE TORT, ITSELF, S HOULD BE ABOLISHED, SO THAT IS , CERT AINLY W OULDDEAL WITH ALL OF THOSE CASES IF THAT OCCURRED.

WELL, THE "IMPACT RULE" HAS ALWAYS LO OKED A T.

WE HAVE TO LOOK AT WHAT IS GOOD TO SOCIETY. I DON'T DISPUTE THAT THERE IS GOIN G TO B E GEN UINE C ASESWHERE A RE MEDY IS DISBAR RED. I CAN'T DISP UTE. THAT HO WEVER , WHAT I THINK WE CAN ALL RECOGNIZE IS THAT, OPENING CAN THE COURTHOUSE DOORS TO ANY CASE , WHERE A PLAINTIFF CLAIMS, WITH O R WITHOUT A PHYSICAL INJURY , I HAVE A PSYCHOLO GICAL IMPAC T. I AM VERY STRESSED BECAUSEOF IT. HOW ARE DEFENDANTS GOING TO DEFEND THEMSELVES ? THEY HAVE THE SAME RI GHTS AS PLAINTIFFS, AND IN THOSE CASES , WHERE THERE IS LITERALLY NO WAY TO DISPUTE THE PLAINTIFF'S CLAIM, THAT IS UNFAIR TO THE DEFENDANT, AS TO THOSE PLAINTIFFS WHOSE LEGITIMATE CLAIMS ARE BARRED. THERE IS GOING TO HAVE T O BE SOME ARBITRARY LINE DRAWN , AND I WOULD SUG GEST TO THIS COURT , THAT IF ANYTHING , THE COURT SHOULD BACK OFF AND MAKE THOSE BRIGHT LINES M ORE CLEAR THAN THEY HAVE BEEN , AND MAKE IT CLEAR TO THE LOWER COURTS, THAT IT I S ONLY THE COURT THAT CAN CHANGE THOSE BRIG HT LINES . THANK YOU .

CHIEF JUSTICE: THANK Y OUVERY MU CH. YOU JUST EN DED EXACT LY AT THE RED LIGHT , WHICH IS UNUSUAL FOR THIS WEEK. SO WE THANK YOU. MS. GREEN. HOW MANY MINU TES ARE LEF T?

I HAVE ZE RO.

CHIEF JUSTICE: O KAY .

A COUPLE OF Q UICK PO INTS . IF I MAY . DEFENDANTS CAN HIRE PSYCHOLOGISTS , TOO , AND EXAMINE PLAINTIFFS, AND PLAINTIFFS MAY THINK T WICE BEFORE SUBJECTING THEMSELVES TO SOMETHING THAT IN TIMATE FOR A CASE THAT DIDN'T REALLY HA EN.

CHIEF JUSTICE: I THINK THE TIME IS UP , THEN THANK YOU VERY MUCH. ALL RIG HT. THE COURT WILL TAKE ITS MORNING REC ESS. WE WILL NORTHBOUND RECESS FOR 15 MINUTES.

MARSHAL: PLEASE RI SE.