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Florida Fourth DCA finds that “impact rule” barred parents’ recovery of damages for emotional distress arising from funeral home’s allegedly negligent loss of infant’s cremated ashes

On March 11, 2020, in Williams v. Boyd-Panciere Family Funeral Care, Inc., No. 4D19-473, the Florida Fourth DCA affirmed a summary judgment for the defendant in a case in which the plaintiffs alleged they were entitled to damages for emotional distress arising out of the defendant funeral home’s allegedly negligent loss of the cremated ashes of their deceased infant. The parties did not dispute that the parents suffered no physical impact from the alleged tort. The defendant obtained a summary judgment based on Florida’s “impact rule”, which requires a party seeking damages for emotional distress to prove either (1) a physical impact or (2) willful, wanton, malicious, and outrageous behavior on the part of the defendant. Both the trial court and the Fourth DCA concluded that there was no evidence of a physical impact or of a physical manifestation of the parent’s emotional distress, and (2) there was no evidence supporting a finding that the funeral home’s conduct was willful or wanton, or outrageous. The Fourth DCA noted that in Gonzalez v. Metropolitan Dade County Public Health Trust, 651 So. 2d 673, 673 (Fla. 1995), the Florida Supreme Court reviewed a similar case involving the allegedly negligent mishandling of a dead body. In that case, an infant’s body was misplaced and subsequently found after the funeral. The Florida Supreme Court declined to adopt the position of Section 868 of the Restatement (Second) of Torts which allows for a recovery for mental anguish by family members arising from the negligent mishandling of dead bodies. The Fourth DCA concluded that the Florida Supreme Court’s holding in Gonzalez was broad enough to encompass an action for negligence under the facts of this case.