Mallock v. Southern Memorial Park, Inc., 89-1068

• Decision Date: 17 April 1990
• Docket Number: No. 89-1068,89-1068
• Citation: 561 So.2d 330
• Parties: 15 Fla. L. Weekly D999 Christine Lee MALLOCK and Steve Mallock, Appellants, v. SOUTHERN MEMORIAL PARK, INC., Appellee.
• Court: Florida District Court of Appeals

Page 330

561 So.2d 330

15 Fla. L. Weekly D999

Christine Lee MALLOCK and Steve Mallock, Appellants, v. SOUTHERN MEMORIAL PARK, INC., Appellee.

No. 89-1068.

District Court of Appeal of Florida,

Third District.

April 17, 1990.

Rehearing Denied June 1, 1990.

Frank Mallory Shooster, Fort Lauderdale, and Jo Ann Baran, Kravitz and Kravitz and Shelley J. Kravitz, Hialeah, for appellants.

Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane and Shelley H. Leinicke, Fort Lauderdale, and Paul H. Field, Miami, for appellee.

Before COPE, LEVY and GODERICH, JJ.

COPE, Judge.

Christine Mallock and Steve Mallock appeal an adverse final judgment. We reverse.

The Mallocks brought suit against the defendant cemetery, Southern Memorial Park, Inc., alleging intentional infliction of emotional distress, and breach of the statutory right of access pursuant to section 704.08, Florida Statutes (1987). The Mallocks alleged that their son was buried in Southern Memorial Park, and that three times per year, for the past seven years, the Mallocks have conducted a graveside memorial service. Each such service was conducted without incident, and at no time had the Mallocks been advised that any special permission was required from the cemetery for the conducting of such services.

On the seventh anniversary of the son's death, the Mallocks and a group of friends arrived for a memorial service to be conducted at 11 a.m. Taking the evidence, as we must, in the light most favorable to the Mallocks--the parties opposing summary judgment--the Mallocks found that preparations had been made to hold funeral services on a neighboring plot, and that chairs and a ground covering slightly overlapped the son's gravesite. Upon asking Southern's management to assist them by temporarily moving the chairs and ground covering aside so they could conduct the ceremony, Southern's manager directed the party to leave the cemetery at once, accused them of trespassing, and called the police. While the police were on the way, the Mallocks' party moved the chairs and canvas out of the way, which only required a brief time to accomplish, and conducted a short five-minute ceremony rather than the thirty-minute ceremony which had been planned. A security guard ordered the Mallocks to leave or be arrested, and said, "What do you think, you're in China?" ¹ The Mallocks' ceremony, had it been held as planned, would have ended by 11:30 a.m. The ceremony on the neighboring plot was not scheduled to begin until 1:00 p.m.

The Florida Supreme Court has recently summarized the elements of the tort of intentional infliction of emotional distress:

This Court first recognized the tort of intentional infliction of emotional distress in Metropolitan Life Insurance Co. v. McCarson [467 So.2d 277 (Fla.1985) ]. In McCarson we approved the adoption of section 46, Restatement (Second) of Torts (1965), which states:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

In that case, however, we held that the court below had not conformed its findings to the comments to section 46 which explain the application of the tort.

Comments d and i to section 46 are particularly pertinent to our consideration:

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

....

i. Intention and recklessness. The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct. It applies also where he acts reckless, as that term is defined in § 500, in deliberate disregard of a high degree of probability that the emotional distress will follow.

Eastern Airlines, Inc. v. King, 557 So.2d 574 (Fla.1990) (emphasis added).

The trial court granted summary judgment in favor of Southern Memorial Park on the count for intentional infliction of emotional distress. Taking the record in the light most favorable to the non-moving party, the Mallocks, we conclude that a trier of fact could find that the conduct of Southern was reckless, in accordance with the standards just cited. To summarily eject the Mallocks from the premises was to act "in deliberate disregard of a high degree of probability that the emotional distress will follow." Id. See also Restatement (Second) of Torts § 48 (1965); Dominguez v. Equitable Life Assurance Society, 438 So.2d 58, 59 (Fla. 3d DCA 1983), approved, 467 So.2d 281 (Fla.1985); Rubin v. Matthews Intern. Corp., 503 A.2d 694 (Me.1986); W. Prosser & W. Keeton, Prosser & Keeton on Torts § 12 at 63 (5th ed. 1984). The Restatement does, of course, recognize a defense of privilege, which in this case is a matter for the jury to consider. See Restatement (Second) of Torts § 46, comment...