Losing a loved one is amongst one of the worst events that each of us will have to face in life.  When choosing a funeral home to help us with the burial or cremation of our loved ones, we place a lot of trust.  The average person trusts that the funeral home will help, not hinder the process.  We hope that the funeral home has compassion and will work diligently to ensure our needs are met.  Finally, we expect that we can mourn and not have to worry whether the funeral home is doing the right thing.

In most situations, funeral homes meet these goals.  However, sometimes, the funeral home goes awfully wrong, breaching our trust and, in some cases, making the loss of a loved one even more stressful and traumatic to the family.  There are several examples of this, which I have encountered over the years.

In one case, a family came to me because they wanted to be present for their deceased loved one’s cremation.  This is common practice and tradition with some cultures and religions, including but not limited to Hindu and Buddhist.  The family planned to come to the funeral home to witness the cremation…and the body was already cremated.  As you can imagine, the family was devastated.

The funeral home argued that this was common negligence.  However, under Florida law, the legal standard for suing a funeral home when it mishandles remains is different from common negligence.  The standard is as follows:

Under Florida law, a claim for negligent mishandling of a corpse does not require the plaintiff to show physical impact or injury. However, the plaintiff must demonstrate that the funeral home’s conduct was willful, wanton, or malicious to recover damages for emotional distress. In the case of  Gonzalez v. Metropolitan Dade County Public Health Trust, the Florida Supreme Court reaffirmed that damages for mental pain and anguish unconnected with physical injury are not recoverable in an action for simple negligence unless the conduct reasonably implies malice or is characterized by a complete lack of care or great indifference. (Gonzalez v. Metropolitan Dade County Public Health Trust, 651 So.2d 673 (1995)).

This principle was also applied in Sherer v. Rubin Memorial Chapel, Ltd., where the court reversed the dismissal of a complaint alleging mishandling of a corpse, recognizing that the plaintiff must prove willful, wanton, or malicious behavior by the defendant.  (Mellette v. Trinity Memorial Cemetery, Inc., 95 So.3d 1043 (2012)).

There are various reasons the standard of proof is higher, including Florida’s Impact Rule.   Under that rule, where one is claiming pain, suffering and/or mental anguish as a result of another’s negligence, there must be a physical impact with the aggrieved person.  In the case of funeral home negligence, this would mean that there would need to be a physical touching, or impact to the survivors who sought out the funeral home services.  In every funeral home case I have handled, there was no physical impact with any one of the survivors.  As such, to help the client, we were tasked with proving willful, wanton, or malicious to recover damages for emotional distress.

In the example provided above, we were successful in overcoming this burden pre-suit.  We completed a thorough investigation and dug deep into what was told to the family, how the funeral home operated and what happened to the remains once the funeral home had it.  We were able to secure several hundred thousand for the family due to the conduct of the funeral home.  While the family felt that no dollar amount could replace the experience of being there for their deceased loved one, they were thankful that the settlement provided closure and a sincere apology for the willful and wanton conduct.

If you, a family member or friend have been wronged by a funeral home or have any questions about a situation that occurred with the remains of a loved one, the Hastings Law Firm is here to help.  All consultations are complimentary, and we never charge you a fee unless we can make you a recovery.