Cemetery and Funeral Home Injury Claims in Georgia

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A family harmed by the mishandling of a loved one’s remains faces a hard rule in Georgia: emotional distress caused by negligence is recoverable only through a physical impact that caused a physical injury, and in 2017 the Supreme Court of Georgia declined to make an exception for mishandled remains. A different set of rules governs a visitor who is hurt by a fall on cemetery or funeral home grounds, and a statute decides which relative controls the remains in the first place.

Mishandled Remains and the Physical Impact Rule

The rule has three parts. Recovery of emotional distress damages caused by negligence, where there is no pecuniary loss, requires a physical impact to the plaintiff, a physical injury caused by that impact, and mental suffering or emotional distress caused by that physical injury (Coon v. Medical Center, Inc., 300 Ga. 722 (2017), restating Lee v. State Farm Mutual Insurance Co., 272 Ga. 583 (2000)).

Quoting Lee, the Court explained why the line holds: “[i]n order to avoid limitless liability out of all proportion to the degree of a defendant’s negligence, and against which it is impossible to insure without imposing unacceptable costs on those among whom the risk is spread, the right to recover for negligently caused emotional distress must be limited.”

In Coon, a hospital mishandled the remains of a stillborn baby, and the mother sued for negligent infliction of emotional distress. Lee had allowed one exception, for a parent where “the parent and her child both suffered a physical impact that caused them both physical injuries.” The Court held that “the facts of this case, while tragic, do not warrant the creation of a new exception to the physical impact rule,” because the mother suffered no physical impact that resulted in physical injury, “nor did the child suffer any physical impact or injury.” It agreed with the Court of Appeals, which had refused such an exception in Hang v. Wages & Sons Funeral Home, Inc., 262 Ga. App. 177 (2003), a case the Supreme Court described as involving a premature cremation, and in Hall v. Carney, 236 Ga. App. 172 (1999), described as involving the disinterment and removal of the recently reburied remains of the plaintiff parents’ stillborn child.

Damages When the Entire Injury Is to Feelings

“In a tort action in which the entire injury is to the peace, happiness, or feelings of the plaintiff, no measure of damages can be prescribed except the enlightened consciences of impartial jurors. In such an action, punitive damages under Code Section 51-12-5 or Code Section 51-12-5.1 shall not be awarded” (OCGA 51-12-6).

Who Controls the Disposition of Remains

OCGA 31-21-7(b) vests the right to control the disposition of remains, the arrangements for funeral goods and services, and the place and manner of disposition “in the order named,” in a person who is 18 or older and of sound mind. The order begins with the decedent’s health care agent; then, for a person who died in military service, the person designated on the Department of Defense emergency data form; then a person the decedent designated by notarized affidavit; then the surviving spouse; the sole surviving child or a majority of the surviving children; the surviving parent or parents; the surviving siblings; the surviving grandparents; the guardian of the person; and the personal representative, followed by the next degree of kin, a public officer where the state or a political subdivision is responsible for the disposition, and, at the end, any other person willing to act. Where those who share the right cannot agree, the probate court of the county where the decedent lived may award it to the person it finds “the most fit and appropriate to carry out the right of disposition” (OCGA 31-21-7(d)).

A Fall on the Grounds

A visitor hurt on cemetery or funeral home property has a premises claim. An owner or occupier who invites the public in owes ordinary care in keeping the premises and approaches safe (OCGA 51-3-1), and the injured invitee must show that the owner knew of the hazard and that the invitee did not, despite ordinary care (Robinson v. Kroger Co., 268 Ga. 735 (1997)). Two Court of Appeals decisions on other properties bear on conditions a visitor to open grounds may meet. In North Fulton Community Charities, Inc. v. Goodstein, 367 Ga. App. 576 (2023), a visitor to a food pantry tripped on an unmarked rise in an access road, and the court held that the rule about a visitor’s earlier safe passage could not be applied and that whether the hazard was visible was a question for the jury. In Suddarth v. Lounsbrough, 369 Ga. App. 158 (2023), a mail carrier slipped on leaves on a front step after dark with the porch light off; the court held that the homeowners had no actual or constructive knowledge of that accumulation and that, absent a contract or statute, there was no duty to provide lighting.

Frequently Asked Questions

Does the analysis change if the conduct was intentional rather than careless?
The physical impact rule, as Coon describes it, limits recovery for “negligently caused emotional distress.” In Coon the mother also pleaded intentional infliction of emotional distress; the Court of Appeals affirmed the trial court’s ruling on that claim, and the Supreme Court noted that “[t]hose rulings are not at issue here.”

What happens when relatives who share the right disagree about burial or cremation?
Any of them, or a funeral home with custody of the remains, may petition the probate court, which weighs factors that include the reasonableness of the proposed arrangements, each person’s relationship with the decedent, and the desires of the decedent (OCGA 31-21-7(d)(1), (2)). While the dispute lasts, a funeral home “shall not be liable for refusing to accept the remains or to inter or otherwise dispose of the remains” until it receives a court order or a written agreement signed by the parties (OCGA 31-21-7(d)(3)).

Does the relative paying for the funeral get a greater say?
No, except as the probate court may consider it. Paying or agreeing to pay “shall not give that person a greater claim to the right of disposition than the person would otherwise have” (OCGA 31-21-7(d)(4)).

Can a relative lose the right to decide?
Yes, in four listed situations: a charge of murder or voluntary manslaughter in connection with the death that is known to the funeral director; failure to act “within two days of notification of the death of decedent or within three days of decedent’s death, whichever is earlier”; a divorce petition pending at the death; and a probate court finding of estrangement (OCGA 31-21-7(c)). The right then passes to the next qualifying person.

Is a funeral home liable for following someone who falsely claimed the right?
A funeral home may rely on a signed funeral service agreement or authorization and has “no responsibility to contact or to independently investigate the existence of any next of kin or relative of the decedent” (OCGA 31-21-7(e)). A funeral establishment or director that relies in good faith on a person who later proves to have falsely or fraudulently claimed the right “shall not be subject to criminal or civil liability or subject to disciplinary action” for carrying out the disposition (OCGA 31-21-7(f)).

  • Coon v. Medical Center, Inc., 300 Ga. 722 (2017), quoting Lee v. State Farm Mutual Insurance Co., 272 Ga. 583 (2000), and describing Hang v. Wages & Sons Funeral Home, Inc., 262 Ga. App. 177 (2003), and Hall v. Carney, 236 Ga. App. 172 (1999)
  • OCGA 51-12-6
  • OCGA 31-21-7(b), (c), (d), (e), (f)
  • OCGA 51-3-1; Robinson v. Kroger Co., 268 Ga. 735 (1997)
  • North Fulton Community Charities, Inc. v. Goodstein, 367 Ga. App. 576 (2023); Suddarth v. Lounsbrough, 369 Ga. App. 158 (2023)

Disclaimer

This article provides general information about cemetery and funeral home claims under Georgia law. It is not legal advice and does not create an attorney-client relationship. Whether a claim for emotional injury can be brought, and who holds the right to control the remains, depend on the specific facts and current authority. A family dealing with such a situation should consult a licensed Georgia attorney about the particular situation.

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