It is difficult to envision that the Courts would have to be involved in any claims for damages based upon the wrongful disinterment of a body or the wrongful refusal to give up a body to the legal representative but it has happened in Florida and in other states. However, the actions of a few have resulted in the development of a cause of action for mishandling of corpses.
Florida has a specific statute, Florida law. Section 497.384(3), Florida Statutes (2007), which provides that a disinterment must be authorized in writing by “a legally authorized person or a court of competent jurisdiction.”
In one Florida case a man who died in a car accident left a wife and a mother. The mother wanted him buried where she had a family plot in another state and the wife wanted him buried in Florida. The mother contacted the funeral home several months after he was buried and wanted her son disinterred and brought and buried in another state. The funeral did exactly what the mother wanted and failed to check its own file to determine if the mother was the next of kin and whether the mother was the person described in F. S. 497.384 ( 3 ). The funeral home forgot about the wife and her husband’s body and transported away without even informing her The wife sued the funeral home for the damages based on theories of tortious interference with a dead body and reckless infliction of emotional distress.
It is well settled that, in the absence of testamentary disposition to the contrary, a surviving spouse or next of kin has the right to the possession of the body of a deceased person for the purpose of burial, sepulture or other lawful disposition which they may see fit. And the invasion of such right by unlawfully withholding the body from the relative entitled thereto is an actionable wrong, for which substantial damages may be recovered.
Generally, in tort cases you generally look to see if there has been a physical impact with a person before the person is entitled to claim non-economic damages which are pain and suffering and mental anguish but there are exceptions to the impact rule. The court determined that the wife had stated a valid cause of action.
The Florida Supreme Court recognized a cause of action for tortious interference with a dead body in Kirksey v. Jernigan, 45 So. 2d 188, 189 (Fla. 1950). In that case, the court held that the impact rule, precluding recovery for mental pain and anguish unconnected to a physical injury in negligence cases, did not extend to cases where the wrongful act is such as to reasonably imply malice or where, “from the entire want of care of attention to duty, or great indifference to the persons, property, or rights of others,” malice justifying exemplary damages will be imputed. Id. (citing 15 Am. Jur., Damages, § 179; Restatement of Torts § 47(b)). Further, the court wrote:
The right to recover, in such cases, is especially appropriate to tortious interference with rights involving dead human bodies, where mental anguish to the surviving relatives is not only the natural and probable consequence of the character of wrong committed, but indeed is frequently the only injurious consequence to follow from it.
In the case involving the wife whose husband was taken away, the Court concluded that the jury should make the decision whether the funeral home’s conduct exhibited an “entire want of care of attention to duty” or was not so wanton as to render it liable for intentionally interfering with a dead body. Outrageous conduct is that which goes “beyond all bounds of decency” and is “regarded as outrageous” will give rise to a right to damages in Florida.
Another case of a lawsuit being filed for non-economic damages involving a dead body which was placed in the wrong casket for a viewing. The employees in that case also attempted to convince the mourners that the stranger’s body was their decedent, and when the employees finally found the correct body and placed it in the casket, its appearance was unsatisfactory. The court pointed out that whether the plaintiff was entitled to damages based on these facts was a matter for a jury to decide.
Mishandling corpses in Florida can get the funeral home sued on various legal theories. A plaintiff seeking recovery under this theory must prove that the defendant acted recklessly and that his conduct was extreme and outrageous. Johnson v. Thigpen, 788 So. 2d 410, 412 (Fla. 1st DCA 2001).
In yet another case in Florida, Sherer v. Rubin Memorial Chapel, Ltd., 452 So. 2d 574 (Fla. 4th DCA 1984), the circuit court dismissed Sherer’s suit for damages based on the mishandling of a corpse. That theory is materially identical to the tort involved here, in that a plaintiff pursuing either cause of action must prove willful, wanton, or malicious behavior by the defendant. See id. at 575.
In Sherer the defendant funeral home’s employees dressed another body in the decedent’s clothes and placed it in her casket for an open-casket funeral. When the decedent’s relatives discovered the error, the employees first tried to convince them that the body was actually their loved one. After the employees finally admitted their mistake, they placed the decedent’s unprepared corpse in the casket and simply threw her clothes on top of the body.
Cremations are not exempt either from lawsuits by relatives. In one case the court affirmed a jury’s determination that a cremation society had acted outrageously in Smith v. Telophase National Cremation Society, Inc., 471 So. 2d 163 (Fla. 2d DCA 1985).
Smith had arranged for the society to cremate his body after his death. When his widow came to collect his ashes, the defendant’s business manager at first was unable to locate them, but after excusing herself she returned with an unlabeled plastic container and represented that it held Smith’s ashes. Mrs. Smith embarked on a trip to scatter the ashes in places that had been significant to the deceased. In the course of that endeavor she discovered a partial bridge among the ashes in the container. Her late husband had not had bridge work. The cremation society had given Mrs.Smith the ashes of another deceased person because it had scattered her husband’s ashes at sea, apparently in direct contravention of his wishes.
This season of life comes to each of us and our family members. Death is a door each of us will walk through to the other side. We are at our most vulnerable emotional and physical state with our ability to protect ourselves is at its weakest point. With our human guard down we can be hurt by the most callous acts of others.
Some funeral industry workers will leave an additional wound for families to recovery from by their malicious actions. If you have had the misfortune to suffer this final indignity, speak to your lawyer about the incident. Chances are your lawyer has heard it all over the years of his or her practice. There are truly no surprises any more to the practicing lawyer.