Sadly, many of us have experienced the passing of a family member. We all remember the grief and overwhelming sense of loss connected with the passing. Now imagine a funeral home bringing the wrong individual for the viewing or advising the family that the funeral home cannot locate the body of your loved one. Disturbingly, this and even more outrageous negligence occurs everyday in Florida funeral homes and cemeteries.
As a family member of the loved one you have a right to compensation for the mental pain and anguish caused by a careless funeral home or cemetery. However, there are some legal hurdles in the State of Florida that are very important to keep in mind. The two main causes of action for these types of cases are Negligent Infliction of Emotional Distress and Intentional Infliction of Emotional Distress.
Negligent Infliction of Emotional Distress is basically when the funeral home or cemetery has, without intention, committed a negligent act that has resulted in either mishandling of the body, desecration of the body or an event that would cause emotional pain and suffering and/or mental anguish to a family member. The significant hurdle with this claim is the Impact Rule. Under the Impact Rule in the State of Florida the claimant has to have either been physically exposed to or come into contact with the offending item. For example, as a family member is praying next to the casket, the stand collapses and the body rolls onto or touches the family member.
However, what if the family member only observes the negligent act but does not come into physical contact with anything? The law recognizes that a family member could very well suffer mental pain and anguish as a result of witnessing, for example, the body rolling out of the casket. But there is an additional requirement when there is no physical contact – Physical Manifestation.
Physical Manifestation simply means that the family member that witnessed the offending act must demonstrate physical symptoms related to the distress and mental anguish he or she has experienced. For example, one may experience ongoing headaches, stomach or gastrointestinal issues, rashes, nervous tics, etc. The most important aspect of proving the physical manifestation is the testimony of a doctor who will ultimately diagnose these symptoms as being directly related to the incident in question.
In the case of Intentional Infliction of Emotional Distress the Impact Rule does not apply. However, the standard to prove it was intentional is much higher than that of Negligent Infliction of Emotional Distress. This analysis is best left to an attorney who has significant experience in the area of funeral home and cemetery negligence. In its simplest form it requires that the funeral home or cemetery act either with full knowledge that it is doing something wrong that will result in mental pain and suffering to the family members if discovered, or that the action is carried out with a willful and wanton disregard for the family members such that anyone hearing of the activity would find it outrageous.
In addition to the causes of action already mentioned, there are also Florida Statutes that provide a cause of action for the mishandling of bodies. These statutes focus on the desecration of the bodies and disturbing burial sites.
Be forewarned, the funeral home or cemetery will call and attempt to “make things right”. They may offer a refund for funeral services or a free plot for example. DO NOT accept anything until you have spoken to an attorney. DO NOT put anything in writing to them until you have consulted an attorney. Remember they are simply trying to avoid a lawsuit and may not have your best interest in mind!