DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DEON WILLIAMS and EVAN CHANG,

Appellants,

v.

BOYD-PANCIERA FAMILY FUNERAL CARE, INC., a Florida 

corporation; and EVERGLADES CREMATORIUM, LLC, a Limited 

Liability Company,

Appellees.

Nos. 4D19-473 and 4D19-838

[March 11, 2020]

Consolidated appeals from the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; Sandra Perlman, Judge; L.T. Case No. 

16-3573 CACE (04).

William D. Mueller and Elliot B. Kula of Kula & Associates, P.A., Miami, 

for appellants.

Mark D. Tinker of Cole, Scott & Kissane, P.A., Tampa, for appellee 

Boyd-Panciera Family Funeral Care, Inc.

CIKLIN, J.

After a funeral home lost the cremated remains of the appellants’ 

miscarried baby, the appellants (hereinafter “the parents”) brought suit, 

seeking damages for their emotional distress. The trial court granted 

summary judgment in favor of the funeral home, finding that recovery was 

barred because the parents suffered no physical impact or physical 

manifestation of their emotional distress, and because the funeral home’s 

conduct did not rise to the level of egregiousness required to support the 

intentional tort claims brought by the parents. We affirm. The parents

also seek a reversal of the award of attorney’s fees, based solely on reversal 

of the summary judgment. Because we affirm the summary judgment, we 

affirm the award of attorney’s fees.1

1 The award of attorney’s fees was based on an offer of judgment. The parents do 

not raise any error with respect to entitlement or the amount awarded. 
2

The parents brought claims for simple negligence and several torts 

alleging egregious misconduct on the part of the funeral home. The 

summary judgment evidence revealed that employees of the funeral home 

did not follow the funeral home’s protocol for tracking intake of the

cremated remains after they were returned to the funeral home. This 

resulted in the loss of the remains. 

Upon the funeral home’s motion, the trial court entered summary 

judgment for the funeral home, finding that (1) 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. 

On appeal, our standard of review is de novo. See Mellette v. Trinity 

Mem’l Cemetery, Inc., 95 So. 3d 1043, 1045 (Fla. 2d DCA 2012).

“The impact rule, as applied in Florida, requires that ‘before a plaintiff 

can recover damages for emotional distress caused by the negligence of 

another, the emotional distress suffered must flow from physical injuries 

the plaintiff sustained in an impact.’” Fla. Dep’t of Corr. v. Abril, 969 So. 

2d 201, 206 (Fla. 2007) (quoting R.J. v. Humana of Fla., Inc., 652 So. 2d 

360, 362 (Fla. 1995)). “[N]o impact need be shown where psychological 

trauma could be demonstrated to cause a demonstrable physical injury,” 

but the rule bars recovery for purely “psychic injuries resulting from such 

trauma.” Zell v. Meek, 665 So. 2d 1048, 1052 (Fla. 1995). 

The parties do not dispute that the parents suffered no physical impact. 

Further, the sort of injuries suffered by the parents have not been 

recognized as demonstrable physical injuries. See LeGrande v. Emmanuel, 

889 So. 2d 991, 995 (Fla. 3d DCA 2004) (finding that memory loss and the 

exacerbation of a preexisting condition were insufficient to support a cause 

of action for negligent infliction of emotional distress); R.J., 652 So. 2d at 

364 (finding that “hypertension, pain and suffering, mental anguish, loss 

of capacity for the enjoyment of life” are “intangible, mental injuries [that]

are insufficient to meet the physical injury required under the impact 

rule”). Based on the foregoing, the trial court did not err in entering 

summary judgment on the claim or claims grounded in negligence, for 

which a showing of a physical impact was required.

The parents also brought claims alleging that the funeral home acted 

with great indifference and exhibited willful, wanton, malicious, and 

outrageous behavior. The impact rule does not bar claims grounded on

the tortfeasor’s malice, great indifference, willful or wanton conduct, or 

outrageous conduct. See Gonzalez v. Metro. Dade Cty. Pub. Health Tr., 651 
3

So. 2d 673, 675 (Fla. 1995); Kendron v. SCI Funeral Servs. of Fla., LLC, 230 

So. 3d 636, 638 (Fla. 5th DCA 2017); Brady v. SCI Funeral Servs. of Fla., 

Inc., 948 So. 2d 976, 978 (Fla. 1st DCA 2007); Ingaglio v. Kraeer Funeral 

Home, Inc., 515 So. 2d 428, 429 (Fla. 4th DCA 1987). Whether conduct is 

sufficiently willful or wanton or outrageous is typically a question of law. 

See Matsumoto v. Am. Burial & Cremation Servs., Inc., 949 So. 2d 1054, 

1056 (Fla. 2d DCA 2006). We conclude that the trial court did not err in 

finding that, as a matter of law, the summary judgment evidence would 

not support a finding of willful, wanton, malicious, or outrageous behavior. 

We now address the parents’ argument that the circumstances of this 

case warrant an exception to the impact rule. The Florida Supreme Court 

has recognized that the impact rule “is not . . . an inflexible, unyielding 

rule of law, so sacred that it must be blindly followed without regard to 

context.” Rowell v. Holt, 850 So. 2d 474, 478 (Fla. 2003). “Exceptions to 

the rule have been narrowly created and defined in a certain very narrow 

class of cases in which the foreseeability and gravity of the emotional 

injury involved, and lack of countervailing policy concerns, have 

surmounted the policy rationale undergirding application of the impact 

rule.” Id.

Although the Florida Supreme Court has not directly addressed the 

application of the impact rule to the total loss of remains, it has addressed 

the rule’s application to causes of action involving the negligent 

mishandling of a dead body. In Gonzalez v. Metropolitan Dade County 

Public Health Trust, 651 So. 2d 673, 673 (Fla. 1995), the plaintiffs’ baby 

died about a week after childbirth. Two months after the baby’s funeral 

service and burial, the funeral home notified the plaintiffs that the baby’s 

body was still in a refrigerated drawer at the hospital morgue. Id. at 674. 

A second funeral and burial were held. Id. The plaintiffs brought a suit 

for tortious interference with a dead body and negligent infliction of 

emotional distress. Id. 

The trial court entered summary judgment for the hospital based in 

part on the impact rule.2 Eventually, the case made its way to the Florida 

Supreme Court, which was asked to entertain whether it should adopt a 

provision of the Restatement (Second) of Torts and recede from case law 

holding that “the law of Florida will not sustain an action for mental 

anguish caused by negligent handling of a dead body in the absence of 

physical injury.” Id. at 673. The supreme court declined to adopt the 

Restatement provision and recede from the then-existing case law. Id. The 

2 A summary judgment entered for the funeral home was subsequently vacated 

by the trial court. Id. at 674.
4

court first recognized that the “absence of physical impact does not bar a 

claim for the negligent mishandling of a dead body under Florida law” 

where the defendant’s conduct is malicious or willful and wanton. Id. at 

675. The court addressed section 868 of the Restatement (Second) of 

Torts, which the plaintiffs asked the court to adopt, and it explained that 

it “removes not only the physical impact requirement, but also eliminates 

the physical injury currently required under Florida law,” and applies to 

“merely negligent interferences with the body itself or with its proper burial 

or cremation.” Id. The court reasoned that while “cases involving negligent 

mishandling of corpses entail real and palpable injury to feelings, and it 

may even be true that the ‘special circumstances’ guarantee the 

authenticity of the claim, there is no accurate method of separating the 

natural grief resulting from the death of a loved one from the additional 

grief suffered as a result of mishandling of the body.” Id. at 676. The court 

further reasoned that if it adopted the Restatement provision, “[t]he 

consequences [would be] too far reaching in a modern society where it is 

recognized that not all wrongs can be compensated through litigation or 

the courts.” Id. 

While Gonzalez involved the mishandling of human remains, the court’s 

holding appears broad enough to encompass an action for negligence 

based on a funeral home’s actual loss of remains. The facts of this case 

are undoubtedly troubling and heartrending. But it appears that without 

an impact or conduct that goes beyond mere negligence, Florida law as it

now stands does not allow for recovery for emotional distress under the 

facts of this case. 

Affirmed.

TAYLOR and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.