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14 Drexel L. Rev. 297 (2022)
Emotional Distress Recovery for Mishandling of Human Remains: A Fifty State Survey

handle is hein.journals/drexel14 and id is 313 raw text is: EMOTIONAL DISTRESS RECOVERY FOR MISHANDLING OF HUMAN REMAINS: A FIFTY STATE SURVEY Christopher Ogolla* ABSTRACT 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. * Assistant Professor, Barry University Dwayne O. Andreas School of Law. This Article benefitted greatly from the helpful suggestions and comments from Professors Christopher Roederer, University of Dayton School of Law; Eang Ngov, Barry University Dwayne O. Andreas School of Law; Lisa Lukasik, Campbell University Norman A. Wiggins School of Law; Constance Fain, Texas Southern University Thurgood Marshall School of Law; and Dean Thomas Galligan Jr., Louisiana State University Paul M. Hebert Law Center. Additionally, I would like to thank my research assistants: Tatiana Hernandez, Florida State University College of Law, and Melanie Alexander and Joyce Zabala, Barry University Dwayne O. Andreas School of Law. Finally, I owe a debt of gratitude to all the editors of the Drexel Law Review, specifically Kelcie Ouillette, for doing an outstanding job editing this article and suggesting revisions. 297