The Tort of Loss of Sepulcher

I'll bet you never studied this (at least under this name) in your 1L Torts class.


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.

NEXT: Texas Court Rejects Once-Suspended Doctor's Lawsuit Over Reporting of the Suspension

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  1. If this is valid it outlaws whole-body donation, for no good reason.

    1. How so? IANAL but if someone leaves their whole body to science in their will, doesn’t that override heir wishes?

    2. How so? The second element of the claim is “a right to possession of the remains.” If you donate your body to science, your next of kin doesn’t have a right to possess your remains. Hence, no claim.

    3. 1. The logic of this right is not limited to whole-body donation. You would be equally outraged if your loved one came back without his/her head or worse, the wrong head. For those with religious beliefs about literal resurrection of the body, even coming back without eyes or a finger would be a problem.

      2. That said, donation creates some right on the part of the donee. Your preferences in your will can be repudiated by your next of kin once you’re dead but the document expressing your preferences would at least give the donee the benefit of doubt on element 4 – that the ‘interference’ was unauthorized.

  2. But it’s not the sepulcher which was lost, it was the body.

    1. But without the body, you can’t use the sepulcher (at least as intended), so the loss is of the right (of use) of (the) sepulcher.

      Almost modern English is weird. At least Middle Ages is obviously different, but almost modern is so close you get misled into thinking it’s the same.

  3. Interesting. Would this apply to a situation where someone acted falsely as the NOK, made funeral arrangements, and carried out the burial without notifying the rest of the family until well after the burial?

    1. SepulcherMan!

  4. Are you sure the right is not that of sepulture?

  5. “(6) the interference caused plaintiff mental anguish”

    I would prefer that these torts be based on something more objective than emotional injury.

    Suppose someone has developed a philosophical attitudes to the slings and arrows of life. Does that preclude him/her from suing for mistreatment of a loved one’s body?

    I’d say there’s an injury to human dignity which doesn’t have to depend on the grieving survivors having to testify to how much emotional devastation they endured.

    1. Is injury to human dignity more objective than emotional injury?

      I think there’s always an argument to be made that emotional injuries are too speculative, but I don’t think there’s a valid argument that emotional injuries aren’t real injuries. And, if they’re real injuries, excluding them from compensation would just be an acknowledgement that not all injuries can be compensated. That may very well be true, but it’s different from saying they never occurred in the first place.

      By contrast, if someone has a philosophical attitude that causes them no emotional injury, then they wouldn’t be compensated for those injuries simply because they didn’t sustain them. If someone shot at me and I didn’t even know about it, I’ve not suffered any harm and not entitled to compensation. But if someone gets shot and requires long-term medical care, they are entitled to that compensation.

      1. I don’t think it’s simply the injury to the living we’re dealing with – it’s the next of kin trying to vindicate the dignity of the deceased. Or more broadly, an injury to the family as a whole, both living and dead members.

        There ought to be a vehicle to hold people accountable for treating the dead as described in elements 1 through 5 of the tort – I’d argue with standing belonging to the next of kin as representing the family.

  6. Is it not true, though, that suits for negligent Infliction of Emotional Distress(in states other than New York) sometimes involve the mishandling of dead bodies?

  7. What sense does it make to require plaintiff to demonstrate awareness of the interference?

    1. I think because the harm being recognized is the harm done to the deceased’s relatives (although I can see that it is a bit redundant, that to suffer that emotional harm, you’d have to know about it first anyway, but tort law is often like that). On the other hand, I could see the possibility for a common law tort that belongs to the deceased (and thereby the deceased’s estate, which is not necessarily the next of kin), related to the dignified treatment of their body, getting at what Eddy is talking about above.

      1. Thanks tk. Hmm. I guess based on the wording of the statute and on your reply that ‘interference’ here is a legal term of art.

        As a layperson I assumed that ‘interference’ referred to the wrongful act or neglect per se, rather than to the relevant consequence (namely, next-of-kin’s lack of immediate access to the body of the deceased).

        But it appears that the statute (and you, in your response) are using ‘interference’ to refer to the consequence, not to the wrongful act (or neglect) which caused it.

        Is that right?

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