The Volokh Conspiracy
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From Gutnick v. Hebrew Free Burial Society for the Poor (N.Y. trial ct. June 28, 2019) (Judge Francois A. Rivera):
[T]he common-law right of sepulcher "gives the next of kin the absolute right to the immediate possession of a decedent's body for preservation and burial, and … damages will be awarded against any person who unlawfully interferes with that right or improperly deals with the decedent's body." This right is "less a quasi-property right and more the legal right of the surviving next of kin to find 'solace and comfort' in the ritual of burial." Damages are limited to the emotional suffering, mental anguish and psychological injuries and physical consequences thereof experienced by the next of kin as a result of the interference with the right of sepulcher. In order to recover for such emotional injuries, it must be shown that the injuries were "the natural and proximate consequence of some wrongful act or neglect on the part of the one sought to be charged."
To establish a cause of action for interference with the right of sepulcher, a plaintiff must demonstrate that: (1) plaintiff is the decedent's next of kin; (2) plaintiff had a right to possession of the remains; (3) defendant interfered with plaintiff's right to immediate possession of the decedent's body; (4) the interference was unauthorized; (5) plaintiff was aware of the interference; and (6) the interference caused plaintiff mental anguish (Shepherd v Whitestar Development Corp., 113 AD3d 1078 [4th Dept 2014]; see also Melfi, 64 AD3d at 26). A cause of action does not accrue until interference with the right directly impacts on the "solace and comfort" of the next of kin, that is, until interference causes mental anguish for the next of kin (Zhuangzi Li, 147 AD3d at 1116 citing Melfi, 64 AD3d at 31).
The court held that plaintiff had stated a claim, based on these alleged facts:
On April 13, 2014, at an open grave site, plaintiff and other mourners gathered around a coffin believed to be the decedent. During the funeral service, plaintiff noticed a handwritten sticker on the coffin with a name that was not the decedent. Plaintiff alerted the Rabbi performing the ritual and was advised that Orthodox Jewish law forbids the opening of a casket once it has been closed. However, cemetery representatives later opened the casket, in plaintiff's presence and discovered the body of an unknown woman. It is further alleged that the location of the decedent was unknown for several hours. Later, Capitol, HFBA, Mount Richmond Cemetery, and Pyramid representatives informed plaintiff that her father may have been buried in another grave. Upon identifying the grave, the representatives disinterred the coffin and opened it to discover the decedent's body, which plaintiff identified.
The term "loss of sepulcher" appears largely limited to New York law, with just a passing mention in a couple of other states' appellate opinions (one in North Carolina and one in West Virginia); other states seem to handle this under the umbrella tort of "negligent infliction of emotional distress," as the Restatement (Third) of Torts (Phys. & Econ. Harm) § 47(b) & cmt. f & ill. 3 indicates:
An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct … occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional harm….
Comment: [Cases under this tort including] mishandling a corpse or bodily remains.
Illustration: ABC Hospital negligently misidentifies a corpse, causing it to be cremated rather than sent to a funeral home for burial as directed by the family. Members of the family suffer serious emotional harm upon learning about the mistake. ABC Hospital is subject to liability ….
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.