Estate of Harper v. Orlando Funeral Home, Inc.

• Decision Date: 09 January 1979
• Docket Number: No. GG-60,GG-60
• Citation: 366 So.2d 126
• Court: Florida District Court of Appeals
• Parties: The ESTATE of Essie C. HARPER by Glenda H. Jackson, Personal Representative, and Glenda H. Jackson, Shelby Mitchell, Donna Earwood, Bobby Ray Harper, Edward E. Harper and Randy D. Harper, Appellants, v. ORLANDO FUNERAL HOME, INC., d/b/a Bray-Altman Funeral Home, Orange State Casket Company, Inc., the Lumbermens Mutual Insurance Company and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Appellees.

Page 126

366 So.2d 126

The ESTATE of Essie C. HARPER by Glenda H. Jackson, Personal Representative, and Glenda H. Jackson, Shelby Mitchell, Donna Earwood, Bobby Ray Harper, Edward E. Harper and Randy D. Harper, Appellants, v. ORLANDO FUNERAL HOME, INC., d/b/a Bray-Altman Funeral Home, Orange State Casket Company, Inc., the Lumbermens Mutual Insurance Company and National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Appellees.

No. GG-60.

District Court of Appeal of Florida, First District.

Jan. 9, 1979.

Rehearing Denied Jan. 31, 1979.

Wilmer H. Mitchell, of Mitchell & Oberhausen, Pensacola, for appellants.

J. Robert Hughes, of Barron, Redding, Boggs & Hughes, Panama City, and William L. Lee, Jr., of Shell, Fleming, Davis & Menge, Pensacola, for appellees.

BOYER, Acting Chief Judge.

We here review a Final Judgment of the learned trial judge finally dismissing a complaint.

The plaintiffs are the children of Essie C. Harper deceased and plaintiff Glenda H. Jackson is also the duly appointed personal representative of the decedent's estate. Suit was filed by plaintiffs against the defendants because the casket manufactured by Orange State Casket Company and sold by Orlando Funeral Home to plaintiffs to be used incident to the burial of Essie C. Harper commenced falling apart as the body was being carried from the hearse to the grave. The complaint alleges that by supreme effort the pallbearers and the staff of the funeral directory were able to transport the casket and the body to the grave even though the bottom of the casket had come completely loose and was sagging downward several inches. Plaintiffs sought damages under Count I for tortious interference with rights involving a dead human body; under Count II for intentional infliction of emotional distress; under Count III for breach of an implied warranty of merchantability; under Count IV for breach of an implied warranty of fitness; under Count V in strict liability; and under Count VI for punitive damages. The trial court without opinion dismissed the amended complaint for failure to state a cause of action upon which relief could be granted and thereafter entered the final judgment here appealed.

Plaintiffs maintain that the foreseeably sickening consequences of a casket falling apart should be compensable in civilized societies. On the other hand, defendants contend that damages for mental pain and suffering are not recoverable absent physical impact unless plaintiffs fall within the narrow exception to the impact doctrine by alleging conduct exceeding all bounds reasonably tolerated by society such as to imply malice or the entire want of care or great indifference, which they have not and cannot do.

Because the "impact doctrine" is still the law in this state we reluctantly agree with defendants as to recovery for mental pain and suffering, being of the view, however, that the doctrine should be re-examined.

Other state courts have recognized that the reasons given to support the impact rule are no longer viable. For example, in rejecting the impact requirement in cases where negligent infliction of emotional distress has "resulted in serious physical manifestations", the Colorado Supreme Court has stated:

"Traditionally, a number of rationales have been offered in support of the impact rule. It has been argued that emotional damages are simply too speculative, and the possibility of fraudulent claims too high, to permit naked claims of emotional distress. In recent years, however, the medical profession has...