Wednesday, May 18, 2022
The Law of Halloween Nightmares: Damages for Caskets Bouncing Down the Highway, Burial Blunders, and More Funeral Frights
With an average of 3 million deaths per year in the United States, it is inevitable that there will be some funerals-gone-wrong. Examples include botched embalming services, caskets falling onto the roadway, and even a hearse that collided with a train leaving remains scattered at the scene of the crash.
Surviving family members who experience these nightmare scenarios are frequently able to recover money damages for their own mental and emotional distress, but are left to decide whether to utilize a torts or contract approach. The rationale is that tort actions rest in property law, with the decedent’s next-of-kin having quasi-property right in the corpse. Courts often deny tort claims for one of three reasons: the funeral director’s actions were not willful or grossly negligent, mental and emotional damages are difficult to precisely evaluate, or that that plaintiffs are unable to show their distress resulted from physical injury.
While contract law may not have been a practical avenue in the past, many courts now allow for mental or emotional distress under breach of contract claims because the fundamental purpose of the contract is to provide peace of mind.
For more information:
See William A. Drennan, “The Law of Halloween Nightmares: Damages for Caskets Bouncing Down the Highway, Burial Blunders, and More Funeral Frights”, ABA Probate & Property Magazine, May/June 2022.