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Emotional Distress Recovery for Mishandling of Human Remains: A Fifty State Survey


Death is unique in the human race in the sense that once someone dies, unlike in many other species, humans still have attachment and respect for the dead. This attachment and respect should be reflected in the law of the dead. This Article surveys cases of emotional distress recovery for negligent mishandling of human remains among the fifty states. Three things come out clearly. First, jurisdictions that allow pure emotional distress recovery have coalesced around a small range of options. Second, jurisdictions that do not allow stand-alone emotional distress recovery for mishandling of human remains rely on the familiar arguments supporting the distinction between physical and emotional injury and treating the latter as less legitimate. Third, even among the jurisdictions that allow pure emotional distress recovery, standing is a further limitation to plaintiffs’ recovery. This Article suggests abandoning Restatement (Second) of Torts section 46, in favor of Restatement (Third) of Torts section 47; incorporating the principles of evidence-based law in negligent mishandling of human remains; and the application of moral law as a way to respect the dead.