- Impact from particles, however slight, can bring claims
- Court relies on bacterial infection and asbestos cases
Plaintiffs in Florida can sue for pain and suffering damages even if the only physical touch they receive is exposure to microscopic particles like foul odors and smoke, a state appeals court ruled Friday.
The estate of woman who suffered a heart attack can sue her prior landlord for “mental anguish” after she was exposed to the smells from raw sewage, sand in water, and heat from wiring, the Fifth District Court of Appeals ruled in a decision strengthening claims for these types of damages.
Defendants seeking to block mental damages often invoke the “impact rule,” a theory that bars recovery unless a plaintiff if physically touched in some way. The Fifth District looked to other jurisdictions, including federal courts in Florida, to say state courts should consider smells sufficient to save complaints from dismissal.
“Once the trial court found that Decedent inhaled particles from the raw sewage and smoke from the faulty electric wires, the court should not have applied the impact rule,” Judge Harvey L. Jay wrote for the unanimous panel.
The ruling expanded upon Florida’s adoption of the “impact rule” in a 1995 case to prevent “fictitious or speculative claims” arising “from purely emotional distress.” However, the lower court said the plaintiff’s exposure didn’t constitute an impact.
Jay disagreed, pointing out that courts around the country have ruled that contact with smoke, mold, bacteria, and chemicals like asbestos count as impact, regardless of how “slight” the impact might be.
An “impact occurs when an ‘outside force or substance, no matter how large or small, visible or invisible, and no matter that the effects are not immediately deleterious,’” touches a plaintiff’s body, said Jay.
Judges Adrian G. Soud and Scott Makar also heard the case.
The case will have “far-reaching impact,” Lydia Zbrzeznj, the appellate lawyer for the plaintiff’s estate, and managing member of Southern Atlantic Law Group PLLC, said in an email. Trial counsel Landon Stinson agreed.
“Sadly, Sherita Murphy-Gray passed away during the course of this litigation and was never able to have her day in court,” Stinson, founder of Beacon Legal PLLC, said in an email. “However, I believe the Fifth District Court of Appeal’s opinion—what I’m calling ‘Sherita’s Law’—will be one of the many enduring impacts of her life. It stands to benefit not only her family, but plaintiffs across the entire state of Florida.”
Orr Cook represents the property owner.
The case is Murphy v. Heritage II Holdings, LLC, Fla. Dist. Ct. App., 5th Dist., No. 2024-1853, 6/13/25. (Updated with comments from plaintiff’s attorneys in paragraphs nine and 10. )
To contact the reporter on this story: Alex Ebert in Madison, Wis. at aebert@bloombergindustry.com
To contact the editor responsible for this story: Alex Clearfield at aclearfield@bloombergindustry.com
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