             Case: 14-13510   Date Filed: 04/06/2015   Page: 1 of 6


                                                         [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-13510
                          Non-Argument Calendar
                        ________________________

                  D.C. Docket No. 4:13-cv-00074-MW-CAS

WILLIAM F. T. LINCOLN,

                                                             Plaintiff-Appellant,

                                 versus

FLORIDA GAS TRANSMISSION COMPANY LLC,
SOUTHERN UNION COMPANY,
US PIPELINE INC.,

                                                          Defendants-Appellees,

ROBERT O. BOND,
President Florida Gas Transmission Co. LLC Individual, Company
and Corporate Capacities, Individually and Severally, et al.,

                                                          Defendants.

                        ________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       ________________________

                               (April 6, 2015)
               Case: 14-13510      Date Filed: 04/06/2015    Page: 2 of 6


Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      William Lincoln, proceeding pro se, appeals the district court’s dismissal,

for failure to state a claim, of his complaint against Florida Gas Transmission

Company LLC (“Florida Gas”) alleging Florida state law claims of intentional

infliction of emotional distress and negligence. On appeal, Mr. Lincoln argues that

the district court erred because he sufficiently alleged facts supporting all the

elements of his claims. After careful consideration of the record and the parties’

briefing, we affirm.

      We review de novo a district court’s dismissal for failure to state a claim and

construe the factual allegations in the complaint in the light most favorable to the

plaintiff. Lord Abbett Mun. Income Fund, Inc. v. Tyson, 671 F.3d 1203, 1206

(11th Cir. 2012) (citing Mills v. Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir.

2008)). Dismissal for failure to state a claim is appropriate if the facts as pleaded

fail to state a claim for relief that is “plausible on its face.” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009). The “plaintiff’s obligation to provide the ‘grounds’ of his

‘entitlement to relief’ requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (brackets omitted). “Pro se pleadings are held

to a less stringent standard than pleadings drafted by attorneys and will, therefore,


                                            2
              Case: 14-13510      Date Filed: 04/06/2015   Page: 3 of 6


be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th

Cir. 1998) (citing Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir.

1991)).

      Under Florida law, a claim for intentional infliction of emotional distress has

four elements: (1) deliberate or reckless infliction of mental suffering, (2)

outrageous conduct, (3) the conduct caused the emotional distress, and (4) the

emotional distress was severe. Thomas v. Hosp. Bd. of Dirs. of Lee Cnty., 41 So.3d

246, 256 (Fla. 2d Dist. Ct. App. 2010). To demonstrate that the defendant’s

infliction of mental suffering was deliberate or reckless, the plaintiff must show

that the defendant’s conduct was directed at the plaintiff. See Baker v. Fitzgerald,

573 So.2d 873, 873 (Fla. 3d Dist. Ct. App. 1990); Habelow v. Travelers Ins. Co.,

389 So.2d 218, 220 (Fla. 5th Dist. Ct. App. 1980). To demonstrate that the

defendant engaged in outrageous conduct, the plaintiff must show that the

defendant’s actions were “so outrageous in character, and so extreme in degree, as

to go beyond all possible bounds of decency, and to be regarded as atrocious, and

utterly intolerable in a civilized community.” Metro. Life Ins. Co. v. McCarson,

467 So.2d 277, 278-79 (Fla. 1985) (quoting Restatement (Second) of Torts § 46

(1965)). In evaluating whether conduct reaches this level, the court must make an

objective determination, and the subjective response of the person suffering

emotional distress does not control. Liberty Mut. Ins. Co. v. Steadman, 968 So.2d


                                           3
              Case: 14-13510     Date Filed: 04/06/2015    Page: 4 of 6


592, 595 (Fla. 2d Dist. Ct. App. 2007). Moreover, whether conduct is outrageous

enough to support a claim of intentional infliction of emotional distress is a

question of law. Id.

      Under Florida law, a cause of action based on negligence comprises four

elements: (1) a duty, or obligation, recognized by the law, requiring the defendant

to conform to a certain standard of conduct, for the protection of others against

unreasonable risks; (2) a failure on the defendant’s part to conform to the standard

required, i.e., a breach of the duty; (3) a reasonably close causal connection

between the conduct and the resulting injury (proximate cause and cause in fact);

and (4) actual loss or damage. Clay Elec. Co-op., Inc. v. Johnson, 873 So.2d 1182,

1185 (Fla. 2003) (citing Prosser and Keaton on the Law of Torts 164-65). The

determination of the existence of a duty is a matter of law and is not a factual

question for the jury to decide. McCain v. Fla. Power Corp., 593 So.2d 500, 503

(Fla. 1992). Generally, property owners may use their property in any reasonable

and lawful manner, so long as their use does not constitute a nuisance. Reaver v.

Martin Theatres of Fla., 52 So.2d 682, 683 (Fla. 1951). Florida law does not

recognize a specific duty to protect the value of an adjoining landowner’s property.

      Even when all of the elements of a negligence claim are established, a

plaintiff’s recovery for emotional harm is limited by Florida’s impact rule. R.J. v.

Humana of Fla., Inc., 652 So.2d 360, 362 (Fla. 1995). According to the impact


                                          4
                   Case: 14-13510       Date Filed: 04/06/2015       Page: 5 of 6


rule, “before a plaintiff can recover damages for emotional distress caused by the

negligence of another, the emotional distress suffered must flow from physical

injuries sustained in an impact.” Id. (quoting Reynolds v. State Farm Mut. Auto.

Ins. Co., 611 So.2d 1294, 1296 (Fla. 4th Dist. Ct. App. 1992)). A few narrow

exceptions to the impact rule have been created, such as for intentional torts,

certain “freestanding torts,” and breaches of the duty of confidentiality as to the

release of sensitive personal information. Fla. Dep’t of Corrections v. Abril, 969

So.2d 201, 206, 207 (Fla. 2007).

          Federal safety standards for pipeline transportation and pipeline facilities are

set out in the Natural Gas Pipeline and Safety Act. 49 U.S.C. § 60102. The

purpose of this Act is “to provide adequate protection against risks to life and

property posed by pipeline transportation and pipeline facilities by improving the

regulatory and enforcement authority of the Secretary of Transportation.” Id.

§ 60102(a)(1). The act provides a private right of action to seek an injunction for

violations. Id. § 60121(a)(1). It does not restrict the right to relief under other

laws or common law. Id. § 60121(d). 1

          Mr. Lincoln failed to allege facts necessary to support his claims for

intentional infliction of emotional distress and negligence. As to intentional

infliction of emotional distress, he failed to allege conduct sufficiently outrageous


1
    Mr. Lincoln does not assert a claim under § 60121(a)(1); he relies instead on § 60121(d).
                                                  5
              Case: 14-13510     Date Filed: 04/06/2015    Page: 6 of 6


and extreme to meet the second element of that tort, even assuming arguendo that

he has met the other elements, such as the conduct being directed at him and

causation. As to negligence, Mr. Lincoln failed to allege any facts giving rise to a

duty on the part of Florida Gas to protect him from mental and emotional harm and

property value loss, even if we assume the truth of his allegations that Florida Gas

is in violation of state and federal safety statutes. Moreover, he failed to allege any

ruptures or leaks in the pipelines that would indicate any foreseeable risk of harm.

And, because he has not satisfied Florida’s impact rule, his allegations are

insufficient to permit recovery for any of the harms he describes. Accordingly, we

affirm the dismissal of Mr. Lincoln’s claims for intentional infliction of emotional

distress and negligence.

      AFFIRMED.




                                           6
