Negligent Corpse Mishandling
posted by Gerard Magliocca
One of my favorite exotic torts (especially as we reach the end of the semester) is the negligent mishandling of corpses. This cause of action constitutes an exception to the principle that recovery for the negligent infliction of emotional distress is limited to those who observe an accident in which someone close to them is injured or killed. Under the Restatement (Second): ”One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.” Classic examples would include spilling the body from the casket or putting the wrong one in the grave.
Of course, one could say that this is a claim by the deceased for their interest in the proper disposition of their remains that is being brought by the estate. But it probably makes more sense to think about this as an emotional distress claim of the living that is just one step removed from witnessing a death.
November 20, 2009 at 6:11 am
Posted in: Tort Law
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Responses (4)
Tom S. - November 20, 2009 at 9:51 am
As a side point — West devotes an entire keynote number to “Dead Bodies” (116) which raises interesting questions about the taxonomy of law. For instance, does the law of “dead bodies” constitute a unique subset of law with its own basic principles? And if so, how?
Also, the cases make for some grim reading with a window onto life’s stranger cul-de-sacs. The practice of propping a corpse on the porch so the mailman keeps delivering the social security check is disturbingly common…
Daniel S. Goldberg - November 20, 2009 at 10:04 am
I think one should read these torts in light of the extensive story of graverobbing for anatomical cadavers in the U.S. On this point, I suspect there is a fascinating legal history that remains to be told.
Michael H Schneider - November 20, 2009 at 8:14 pm
I vaguely recollect a case out of New Mexico affirming a criminal conviction for a common law crime something like wrongful treatment of a corpse. It involved a religious group in Lordsburg NM (!). One of the members died and the leader, believing that the corpse would be resurrected in the flesh fairly promptly, put it into a plastic bag and tucked it into the closet. So there’s at least some authority for the proposition that the obligation to be respectful to dead bodies arises independently of any effect on relatives.
And yes, the law of dead bodies is a thing apart. A few decades ago I looked into it, and as best as I recall Blackstone treated dead bodies as a special sort of non-property. It was like heirlooms and church plaques, in that there were rights to tend and maintain the grave. These were heritable rights (but passed apart from testamentary disposition), but unlike ordinary property the rights were not alienable and bodies could not be possessed or themselves alienated. Or something like that.
There was a case from New York, 1850s I think, called In The Matter Of The Widening of Beeker Street. Or maybe it was Beekman Street. The church cemetary was affected, and burials needed to be moved. Who had the say over reburial, church or relatives? The court decided that the relatives had this power. This was a very limited right, extending only to determining the proper place and manner of reburial. Nothing but reburial could be done with the burials.
It’s also, of course, arisen in the context of Native American skeletal remains. The federal Native American Graves Protection and Repatriation Act has answered some of the questions, but (IIRC) it doesn’t apply outside federal or indian lands, or to lands where there’s no requirement for a federal permit for whatever activity is threatening ancient graves. The whole question of graves on private lands, and presumed prescriptive easements for burials or cemetaries arising from visible grave sites (but possibly not applying to lost or obliterated graves) gets very muddled (at least in my recollection)
All this is based on recollections from research two or three decades ago, and may be totally superceded.
Mike Rich - November 20, 2009 at 10:11 pm
As I peruse my massive Torts outline, I believe that Gammon v. Osteopathic Hospital of Maine, Inc., 534 A.2d 1282 addresses the issue of handling dead bodies explicitly as an emotional distress issue. While the severed leg delivered to the deceased’s family instead of his personal effects ended up not being the deceased’s, the court’s analysis relied in part on the plaintiff’s reasonable belief that the leg was his father’s.
I’m sure this is remedial, but hey, it’s nice for a 1L at this time of year to say “Hey, I know something!”
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