Solana Beach Lawyer — Negligent Corpse Handling

WHAT IF THE BODY OF MY DECEASED LOVED ONE IS MISHANDLED? - by Blumberg

At some point or another, we all must face having to bury a loved one. The emotional upheaval for the loss, alone, can be overwhelming. Just think how devastating it would be if there is any mishap during the burial process. If in California, you will likely have recourse on several grounds.

Think Breach of Duty Implied in the Contract if the Funeral Home in Any Way Does Not Perform.

There is a well-established implied covenant in every California contract for funeral services that the ceremony will be conducted with dignity and respect toward every family member for whose benefit the services are performed. Wilson v. Houston Funeral Home (1996) 42 Cal. App. 4th 1124, 50 Cal. Rptr. 2nd169. Although the relationship a family has with the funeral home is a contractually based, business transaction, California courts recognize just how uniquely sensitive it is. Because of this, each contract for funeral services implies a special covenant intended to protect the family members from funeral home mishaps.

While the bereaved family members reasonably expect dignity, tranquillity and personal consolation in the handling of funeral services they rarely, if ever, express these expectations in a written contract. . . .The parties orally agree to much of what is to be done and the mortuary follows its common practices as to the rest. . . .Furthermore, from the nature of his calling and experience the funeral director knows patrons expect dignity and respect for the deceased and themselves in the course of arranging and conducting the funeral services. This is, after all, the chief theme of a mortuary’s advertisement and promotion.

(Christensen v. Superior Court (1991) 54 Cal. 3d 868, 895, 2 Cal. Rptr. 2d 79.)

In this light, a funeral home which causes or allows the proceeding to have even the slightest disruption in dignity and respect, will have caused the family of the deceased to have suffered foreseeable mental anguish. This is actionable in California, and ripe for a claim for compensation.

Negligence / Negligence Per Se

In addition to a claim for breach of contract, the family may have a case based on common law negligence. If the funeral home in any way even negligently interfered with the tranquility of the service, a case might be made for recovery of civil damages. Put simply, the funeral home must act as would any other reasonably prudent funeral home and know how delicate the process is for the surviving family, and that they have reasonable expectations for a peaceful process. The negligence would result in presumed severe emotional trauma.

The concern from grieving survivors in California is so great that our Legislature has passed laws addressing specific, inappropriate behaviors. Business and Professions Code, Section 7700 provides in relevant part:

Using profane, indecent, or obscene language in the course of…the funeral service for, human remains, or within the immediate hearing of the family or relatives of a deceased…constitutes a grounds for disciplinary action.

Funeral home employees are human, and do not always act appropriately. Any slight deviation from the standards of decorum could mean a violation of Business and Professions Code §7700.

If there is a violation of this, or any other California statute, it would support a claim of negligence against the funeral home. Violations of statutes could support a claim of “negligence per se” where a violation of a code caused injury to a person, the occurrence of which the code was designed to prevent, and the person injured was within the class of persons the code was designed to protect.

In this context, a case against a funeral home could include the presumption of negligence.

Negligent Infliction of Emotional Distress

Not only would each surviving family member have his own claim for emotional distress caused by funeral home’s mis-behavior, but he would also have another, independent claim for the distinct emotional trauma caused when they witnessed their family members suffering, as well.

It is well established that a bystander who witnesses the negligent infliction of injury to her close family member may recover for emotional trauma even though he or she did not fear imminent physical harm to him/herself. Dillon v. Legg (1968) 68 Cal.2d 728, 746-747.

Where a funeral home or mortuary negligently mishandles the dead body of a loved one, it could be presumed that the surviving family members all suffered severe mental distress as they watched their children and/or other family members witnessing the disruption in the service. California law clearly places civil liability on the funeral home for this sort of behavior.

Damages:

1. Negligence

California courts have long permitted recovery for mental suffering and injury for conduct surrounding dead bodies and the effect it will have on the families of the deceased. The majority of jurisdictions now permit recovery for negligent mishandling of corpses, particularly because there is an obvious likelihood of genuine and serious mental distress arising from the special circumstances which serves as a guarantee that the claim is legitimate.

Even where the conduct is only negligent which prevents proper interment of a dead body, damages are presumed for the mental distress inflicted upon the survivor. Because of this tenet, there is no need for a plaintiff to show physical injury in order to recover for mental distress associated with the mishandling of the body of a family member.

2. Breach of Contract: Mental Distress Damages

Unlike a typical commercial setting, cases involving the mishandling of a corpse allow for the recovery of damages for mental and emotional distress and pain and suffering under a breach of contract cause of action. Damages for mental suffering are generally not recoverable in an action for breach of contractunless the object of the contract would foresee emotional distress upon breach. (See, Sawyer v. Bank of America (1978) 83 Cal. App.3d 135, 139, 145 Cal. Rptr. 623; Dryden v. Tri-Valley Growers (1977) 65 Cal. App. 3d 990, 999, 135 Cal. Rptr. 720. In this light, California courts have determined that damages for mental distress may be recovered for breach of a funeral/burial contract. (See, Sarri v. Jongordon Corp.(1992) 5 CalApp.4th 797,803, Crisci v. Security Ins. Co. (1967) 66 Cal. 2d 425, 434, 58 Cal. Rptr. 13;Fundamentally, a contract whereby a funeral home agrees to take care of a body for burial is one in which it is reasonably foreseeable that breach may cause mental anguish to the decedent’s bereaved relations. California courts embrace these sentiments and freely permit, in addition to the compensatory damages, mental distress damages for breach of a funeral/burial contract.( Saari ,supra, Westervelt v. McCullough (1924) 68 Cal. App. 198, 208, 228 P. 734, citing Renihan v. Wright (1890) 125 Ind. 536, 25 N. E. 822, 826.; see, also, Chelini v. Nieri (1948) 32 Cal. 2d 480, 482, 196 P 2d. 915; Eads v. Marks (1952) 39 Cal. 2d 807, 811, 249 P. 2d 257; Jarchow v. Transamerica Title Ins. Co. (1975) 48 Cal. App. 3d 917, 939-940, 122 Cal. Rptr. 470; Prosser, Law of Torts (4th ed. 1971) pp. 617-618.

3. Out-of-Pocket Expenses

In addition to what could be substantial damages to recover for the pain and suffering/emotional distress associated with the mishandling of a corpse, the surviving family members might also recover straight contract damages for their out-of-pocket expenses. Certainly, the cost of the funeral should be reimbursed because the home breached the agreement to deliver quality services. If the family had to seek medical attention to cope with the emotional trauma, these costs would also be reimbursable.

Conclusion

California law is clear that a funeral, and the handling of a dead body, requires immense care and precision. Any mishap, whether with the corpse itself, or the service, may subject the funeral home to civil liability. Damages may be recovered on several fronts, and for a number of reasons. Statutes are written specifically to protect the survivors for their emotional distress that is presumed under these circumstances. General principals of negligence and breach of contract also apply, and can serve as solid ground for recovery.

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