Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Two sisters from northeast Florida who sipped from a Coke bottle that may or may not have contained a used condom are entitled to recover damages for emotional injuries, the Florida Supreme Court ruled on Thursday. In a 5-1 decision, the high court found that plaintiffs don’t have to prove they were physically injured in order to recover damages. The ruling is significant because it changes the law on the physical injury requirement in connection with Florida’s so-called impact rule, says Russell Bohn, an appellate lawyer at Caruso Burlington Bohn & Compiani in West Palm Beach, Fla. “It changes case law because the court now says ingestion is an impact,” Bohn says. However, the court did not rule on the broad issue raised by the 5th District Court of Appeal of whether the impact rule should be abolished or amended. The impact rule generally requires that for plaintiffs to recover damages for emotional distress, they must demonstrate that the emotional distress flowed from physical injuries sustained in an impact. The case also is significant because no tort claim for fear of AIDS had ever been heard previously by the Florida Supreme Court, though it has become a recognized cause of action in other states. The case dates to 1992, when Linda Hagan and her sister, Barbara Parker, both drank from the same bottle of Coke. After holding it up to the light, they saw what appeared to be a used condom. The women went to a health care facility and were given shots. They were also told they should be tested for HIV and AIDS. They were tested twice and the results came back negative. The bottle was then delivered to Coca-Cola for testing. One analyst determined that the foreign object in the bottle was mold. During the state court trial, however, the sisters testified they were certain it was a condom. A jury returned a verdict in favor of the sisters, awarding each $75,000, along with $20,000 to Barbara Parker’s husband for loss of consortium. The judge reduced the award to $25,000 for each of the sisters and $8,000 for Parker’s husband. The 5th DCA reversed the verdict, holding that under case law concerning the impact rule, the two women had not established a claim because neither had suffered a physical injury. In its ruling, it certified for review the question of whether the impact rule should be abolished or amended. But in its ruling, the supreme court, which historically has declined to follow other states in eliminating the impact rule, declined to address that broader issue. It narrowed the question to whether the impact rule precludes a claim “for emotional distress caused by the ingestion of a contaminated food or beverage … despite the lack of an accompanying physical injury.” In a dissenting opinion, Justice Major B. Harding wrote that the sisters had “failed to establish the necessary threshold for their fear of contracting AIDS claim.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.