Emotional Distress Claims Against a Funeral Home or Cemetery

Grief is not a legal claim. But when a funeral provider's carelessness adds a new wound to the loss of someone you love, Florida law may allow recovery for that added harm. This page explains how.

Where the jury instruction stands

Florida publishes a standard instruction for negligent infliction of emotional distress. Read our page on that instruction here: negligent infliction of emotional distress. There is no standard instruction written for funeral, cemetery, or cremation facts. In those cases the court adapts the standard instruction or crafts a special one. The underlying rules come from common law and from Chapter 497.

The central obstacle: the impact rule

Florida's impact rule generally bars recovery for emotional distress caused by negligence unless the person suffered a physical impact, subject to limited exceptions. This rule is the first thing a funeral home will raise.

For dead-body cases, the Florida Supreme Court has held that a physical impact is not required, but a claim for mental anguish based on negligent handling of a body requires proof of either a physical injury or willful or wanton misconduct. Gonzalez v. Metropolitan Dade County Public Health Trust, 651 So. 2d 673 (Fla. 1995). Medical records are usually how a physical injury is shown.

The exception for dead-body cases

The other path is conduct toward a body that implies malice or shows great indifference to the rights of others. Kirksey v. Jernigan, 45 So. 2d 188 (Fla. 1950). Florida courts continue to apply and refine these rules, so a lawyer should check the latest decisions for your situation. That path is explained on our page about mishandling of a dead body.

In short, the funeral-home emotional distress case usually travels one of two roads.

• Road one: willful or wanton conduct, or malice. No physical injury is required. The family must prove the conduct was more than a mistake.
• Road two: negligence with a physical injury. The family proves ordinary negligence and a physical injury, such as documented illness that followed the event, supported by medical records.

Who can bring it

Usually the family members with the right to control the remains, and in some situations family members who were directly affected by the event. Whether a particular relative qualifies is a question to ask a lawyer early.

What must be proven

• A duty: the provider took your family's loved one into its care.
• A breach: it failed to handle the body, the arrangements, or the records as a careful provider would, or as the law and its own contract required.
• Causation: the failure caused your distress.
• Damages: real emotional harm, described in specifics.
• Either malice or great indifference, or a physical injury shown by medical proof.

The evidence is personal and practical. It includes the family's own testimony, the provider's records, photographs, communications, and, where a physical injury is claimed, medical documentation.

How and when it is pleaded

The claim is pleaded in a civil complaint, usually alongside counts for breach of contract and for violations of Chapter 497. The pleading describes what happened and how it affected the family. Punitive damages require the court's permission after a showing of evidence (section 768.72, Florida Statutes). Filing deadlines apply and differ by claim (section 95.11, Florida Statutes).

Damages

A jury may be asked to consider mental pain and suffering, along with money paid for services that were not delivered, the cost of correcting the problem, and, if allowed by the court, punitive damages. We make no promise about outcome, and the amount of any award cannot be predicted.

Common defenses

• The impact rule bars the claim.
• The conduct was a good-faith mistake, not malice.
• No physical injury is shown.
• The family signed paperwork that the funeral home says covered the event.
• Another business, such as a transport company or hospital, caused the problem and fault should be shared. In negligence claims, Florida law allows the jury to divide fault (section 768.81, Florida Statutes); that statute does not apply to intentional wrongs.
• The claim was filed too late.

What families should do now

1. Keep a private journal of what happened and how it has affected you.
2. See a doctor if grief has affected your health. It matters for your wellbeing first, and the records may also matter later.
3. Save every paper, message, and photograph.
4. Do not sign a release until a lawyer has read it.
5. Contact us soon. Time limits apply.

We will listen first

Call (305) 209-0384, 24 hours a day, 7 days a week. Se habla español. Free consultation.

This page is general information, not legal advice, and it does not create an attorney-client relationship. Past outcomes do not guarantee future results.