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Does a Family’s Grief Constitute “Emotional Distress”?

Losing a parent or loved one is a traumatic experience. This trauma may be exacerbated by the negligent conduct of others. In such cases the family may have cause to bring a personal injury claim against the negligent party.

Crematorium Faces Civil Trial for Unauthorized Cremation

A federal judge in Tennessee recently addressed an interesting lawsuit raising the issue of a family’s right to seek damages for the unauthorized creation of their father. The father passed away in Sevier County, Tennessee, in October 2011. A couple of weeks before his death, one of the decedent’s stepchildren claimed he signed a form giving her his health care power of attorney. He also allegedly signed a form that contained a handwritten instruction to cremate his remains after death.

The decedent had three biological children. The hospital where their father died initially told them he did not have any advance health care directives on file. But three days after the father’s death, a local crematorium met with the stepdaughter and her siblings to discuss cremation. The stepchildren represented they were authorized to act for the father and instructed the crematorium to proceed. The stepchildren never told the crematorium’s representative about the father’s biological children or their wishes in the matter. The father was subsequently cremated without the consent of his biological children.

The biological children sued the crematorium in Tennessee state court for, among other things, “infliction of emotional distress” and “trespass upon the right to possess body for decent burial.” The crematorium moved to dismiss the lawsuit. On January 11, 2016, a federal judge granted dismissal with respect to the emotional distress claims but not the issue of “trespass” on the right of burial.

The judge said the biological children could not prove a claim for “emotional distress” because they “have not demonstrated that they have suffered any significant impairment in their daily lives resulting from the alleged outrageous conduct of defendant.” While the children testified they suffered “severe pain, anguish, grief, sorrow, and outrage,” because their father’s cremation violated their religious beliefs, the judge said that was not enough to sustain lawsuit for infliction of emotional distress. Tennessee law, according to the judge, requires evidence of a “serious mental injury,” not merely increased stress or anxiety resulting from a traumatic event.

That said, the judge also held the children could proceed with their claim for “trespass upon right to possess body for decent burial.” Interference with a family’s right to dispose of human remains is a tort under Tennessee law. The crematorium claims the stepdaughter had written authorization from the father to dispose of his remains. The biological children dispute the validity of this authorization, and if they are correct, then as a matter of law they would have the right to dispose of the remains.

Speak With an Experienced Personal Injury Lawyer

There are many types of personal injury claims that may arise from a relative’s death. If you have any questions or concerns in this area it is important you consult with a qualified Tennessee personal injury lawyer. Contact the offices of Fox, Farley, Willis & Burnette, Attorneys at Law, in Clinton or Knoxville if you need to speak with someone as soon as possible.


Capps v. Cremation Options, Inc., U.S. District Court for the Eastern District of Tennessee, Civil No. 12-545 (Jan. 11, 2016).

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