The Tort of Outrage in the Disposal of Human Remains

Published January 2015 by Ted Babbitt

Winter Haven Hospital v Liles, 39 Fla. L. Weekly D2109 (Fla. 2nd DCA Oct. 8, 2014) was a case in which plaintiff’s decedent, a 49 year old woman, died in a hospital emergency room after being treated for shortness of breath.  Her daughter sought a second autopsy after disagreeing with the findings of the hospital’s pathologist who determined that her mother died of natural causes.

In inquiring about a second autopsy, the plaintiff discovered that her mother’s internal organs had been incinerated as biohazardous waste along with common garbage and that the combined ashes had been sent to a landfill.  Plaintiff brought suit against both the hospital and the pathologist who performed the autopsy based upon the tort of outrage.

Conflicting expert testimony was presented by the parties as to whether organs are ordinarily returned to survivors after the performance of an autopsy.  All experts agreed, however, that mixing human remains with ordinary waste is improper.

The plaintiff testified as to her emotional distress in finding that her mother’s organs had been incinerated contrary to her mother’s desire not to be cremated.  She also testified that her distress was aggravated by the knowledge that a portion of her mother’s body had been mixed with waste and that the ashes had been disposed of along with garbage.

The jury found that the conduct of both the pathologist and hospital constituted “extreme and outrageous conduct (that) was a legal cause of severe emotional distress.”

The elements of the tort of outrage as set forth at D2112 constitute:

  • The wrongdoer’s conduct was intentional or

reckless, that is, he intended his behavior

when he knew or should have known that

emotional distress would likely result;


  • the conduct was outrageous, that is, as to go

beyond all bounds of decency, and to be

regarded as odious and utterly intolerable

in a civilized community;


  • the conduct caused emotion[al] distress; and


  • the emotional distress was severe.


Meeting the standard for outrage under Florida law is difficult at best.  The

Court cited with authority Florida cases holding:

Gallogly v. Rodriguez, 970 So. 2d 470, 471 (Fla.

2d DCA 2007) (second alteration in the original)

(citing LaGrande v Emmanuel, 889 So. 2d 991,

994-95 (Fla. 3d DCA 2004).  “Conduct claimed

to cause severe emotional distress must be

‘so outrageous in character, and so extreme

in degree, as to go beyond all possible bounds

of decency.’”  Matsumoto v. Am. Burial &

Cremation Servs., Inc., 949 So. 2d 1054,

1056 (Fla. 2nd DCA 2006) (quoting Ponton v.

Scarfone, 468 So. 2d 1009, 1011 (Fla. 2d

DCA 1985)).  “[T]he conduct must be evaluated

on an objective basis to determine whether it is

‘atrocious and utterly intolerable in a civilized



The Court concluded that sufficient evidence did not exist to support the tort of outrage against the pathologist since he had never spoken to the decedent’s family, knew nothing of their desire to avoid cremation, and that there was an absence of any evidence of any intention to inflict emotional distress on the decedent’s survivors.

Because the trial court improperly instructed the jury on cremation, the appellate court reversed the verdict against the hospital as well but found that based upon the lack of consent to incinerate the organs, the improper disposal of human remains together with trash, and the testimony of severe emotional distress that sufficient evidence existed for retrial on the tort of outrage against the hospital.  At 2113, the Court concluded:

“it [is] within the province of the jury to find that

the facts, and the proper inferences from the

facts, establish that [crematorium’s] conduct

was extreme and outrageous”);  see also

Williams v. City of Minneola, 575 So. 2d 683,

691 (Fla. 5th DCA 1991) (recognizing that

“our society. . . shows a particular solicitude

for the emotional vulnerability of survivors

regarding improper behavior toward” their

dead loved one and that in such cases,

“behavior toward” their dead loved one and

that in such cases, “behavior which in other

circumstances might be merely insulting,

frivolous, or careless becomes indecent,

outrageous and intolerable”).


The independent tort of outrage is a difficult one to establish as a matter of law.  This case relaxes that standard as it relates to the disposal of human remains.





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