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The Law of Halloween Nightmares Damages for Caskets Bouncing Down the Highway, Burial Blunders, and More Funeral Frights
By William A. Drennan
William A. Drennan is a professor at Southern Illinois University Law School and a former editor for the Books & Media Committee of the Real Property, Probate and Trust Law Section of the ABA.
The Law of Halloween Nightmares: Damages for Caskets Bouncing Down the Highway, Burial Blunders, and More Funeral Frights
Halloween lore abounds with tales of the disrespected dead seeking retribution. Debate on the existence of wrathful wraiths is spirited. But surviving family members frequently recover money damages in court for their own mental and emotional distress arising from the indignities visited upon the dead because of funeral or burial blunders and bloopers.
A decedent was not only late for his own funeral, but completely missed it, because of a botched embalming job. Seventy-five to 100 friends gathered inside for the funeral, but the decedent was left outside because of the foul stench. The jury presumably pondered the family’s ignominy from their ancestor’s malodorous end.
In 2012, a Michigan family received $80,000 in settlement after the casket fell from the hearse and grandma rolled out onto the road in front of the mourners on the way from the funeral home to the church. Members of another decedent’s family nearly fainted when their ancestor’s casket was opened, revealing that only the top half was embalmed. Elsewhere, a hearse collided with a railway train, scattering the decedent’s remains, and nobody from the funeral home bothered to “pick up the pieces.”
In a rather dramatic protest of low wages, the driver and attendants sped off in the hearse just as the pallbearers stepped into the street, leaving the family at the curb with the corpse and casket, without proper transport to the cemetery. In another blunder, an especially confident funeral director assured the family that embalming the corpse would preserve it “practically forever” and referred to the great funeral parades for Abraham Lincoln and Enrico Caruso. Twenty months later, when exhumed, the family was horrified, as mom had become a “decomposed, rotted . . . mass.”
These cases, and the citations, are discussed in greater detail in the section of this article subtitled “Actual Damage Awards in Selected Cases.”
Introduction: Haunting Legal Issues and Practical Responses
Legal restrictions of the past may haunt plaintiffs attempting to reach a jury and obtain appropriate damages in these cases. This article discusses potential restrictions such as the absence of any physical injury from a physical impact (to the surviving family); the family’s inability, in many cases, to prove willful or malicious intent; and the general prohibition on recovering mental or emotional distress damages in breach of contract actions. This article considers whether plaintiffs tend to pursue these actions as torts or breaches of contract, the practical difficulties of proving severe mental or emotional distress damages, the need for independent medical evidence, and the attempts to monetize these damages, all with a backdrop of reported cases capable of inspiring horrific nightmares.
Creepy Background
Death for all, and a funeral and burial for many, creates hundreds of thousands of annual opportunities for willful misdeeds and innocent mistakes. Each year, approximately three million people die in the US (officially, 2.85 million in 2019, with an estimate of 3.4 million in 2020 due in part to COVID-19). And each year, approximately 36.6 percent of decedents are buried—the cremation rate surpassed the burial rate for the first time in 2015. Statistics, Nat’l Funeral Dirs. Ass’n, https://www.nfda.org/news/ statistics (projecting the 2021 cremation rate at 57.5 percent and the burial rate at 36.6 percent).
Torts or Contracts?
Litigants and courts may treat these funeral or burial blunders as tort or contract cases. The rationale for treating these actions as torts rests on property law. Generally, the decedent’s next-ofkin has a quasi-property right in a corpse. The next-of-kin cannot make a commercial sale of the corpse but may choose how to respectfully dispose of the corpse, subject to a decedent’s binding declarations. See Parker v. Quinn-McGowen Co., 138 S.E.2d 214, 215 (N.C. 1964). Many courts have concluded that family members may bring an action in tort against a funeral director or cemetery for wrongful actions interfering with the next-of-kin’s rights and causing mental or emotional distress. See Robert A. Brazener, Civil Liability of Undertaker in Connection with Embalming or Preparation of Body for Burial, 48 A.L.R.3d 261, 268, 270 (1973); David B. Sweet, Liability of Cemetery in Connection with Conducting or Supervising Burial Services, 42 A.L.R.4th 1059, 1060 (1985). Other courts have treated these disputes as contract cases between the bereaved and the service provider hired to prepare, transport, or bury the deceased. In either case, litigants face many obstacles to recovery.
Tort Restrictions
Although recognizing the possibility of recovering in tort, courts often denied relief on one of three grounds. First, numerous courts concluded that damages for mental or emotional duress were available only if the funeral director’s actions were willful or grossly negligent, and not merely negligent. See, e.g., Mensinger v. O’Hara, 189 Ill. App. 48, 57 (1914). This is consistent with the general notion that defendants should pay damages for intentionally wrongful acts, but perhaps not for inadvertent accidents. Jack Leavitt, The Funeral Director’s Liability for Mental Anguish, 15 Hastings L.J. 464, 471 n.27 (1964). As a related restriction, many courts required a showing of actual malice, where the defendant’s actions were not only intentionally wrongful but actually intended to harm the plaintiff. See, e.g., Kimple v. Riedel, 133 So. 2d 437, 439 (Fla. App. 1961).
Second, other courts refused to grant relief because damages from mental and emotional duress were impossible to precisely evaluate, measure, predict, and monetize. Mental and emotional distress could encompass “fright, nervousness, grief, anxiety, worry, mortification, humiliation, embarrassment, terror, or ordeal.” 22 Am. Jur. 2d, Damages, § 224, at 214 (2013). Symptoms could include headaches, upset stomach, sleep disorders, neurosis, depression, and personality changes. One court observed that the cases were in “hopeless conflict” on whether “mental pain” is a proper element of damages. Sanford v. Ware, 60 S.E.2d 10, 12 (Va. 1950).
Third, some courts refused to grant these damages unless the plaintiff could show the mental or emotional distress flowed from physical injuries resulting from a physical impact. See 22 Am. Jur. 2d, Damages, § 224, at 213 n.1 (citing several cases); see, e.g., Gatzow v. Buening, 81 N.W. 1003, 1009 (Wis. 1900).
Contract Law Avoids Many Restrictions
Many older cases treated funeral failures or cemetery slip-ups as torts, but things have changed with an important contract law development. Normally, a plaintiff cannot recover for mental or emotional distress in breach of contract cases. Joseph M. Perillo, Contracts, § 14.5(b), at 520 (7th ed. 2014). But now, many courts make an exception when a fundamental purpose of the contract is to provide peace of mind. The Restatement recognizes this exception, and it specifically includes an illustration for funeral or burial cases. Restatement (Second) of Contracts § 353, illus. #3 (Am. Law Inst. 1981). Other classes of contracts in this club include holiday, vacation, and entertainment contracts; travel arrangements; and all sorts of agreements related to weddings. The rationale is that the heart of these bargains is preserving and promoting peace of mind, and a performance creating mental anguish or emotional distress violates a fundamental purpose of the contract, so the parties must have contemplated the consumer would collect damages for such a breach.
As a result, a plaintiff suing for breach of contract may not have to prove either physical injuries from an impact or that the funeral director’s actions were willful, wanton, or malicious. Also, suing for breach of contract can dispense with the argument that mental and emotional distress damages should not be awarded because of calculation complications. In light of this legal development, it is not surprising that the emerging trend is to pursue these cases as breach of contract actions. Brazener, supra (summarizing this evolution).
Fundamentals for Recovering for Mental and Emotional Distress Damages in Contract Cases
The jury has the initial responsibility “to determine the amount of damages, and there is no formula or pattern for measuring such damages.” Clark v. Smith, 494 S.W.2d 192, 198 (Tex. App. 1973). A judge considering a jury verdict, or a reviewing court on appeal, may “reduce [the amount] . . . if in the exercise of . . . sound judicial judgment and discretion, [the judge or court] find[s] the award to be [so] excessive . . . [or] irrational . . . as to shock the conscience of the court.” Id. Also, the amount may be increased, if necessary, to a reasonable amount. See, e.g., French v. Ochsner Clinic, 200 So. 2d 371, 374 (La. App. 1967) (involving an unauthorized autopsy).
Practical Observations About Damage Awards and Strategies
In this thicket of the law, not only are the fact patterns memorable and disturbing, but also the methods of proof and the amounts awarded can be intriguing. Litigants, judges, and juries have much to consider.
(1) Estimating the Damages Reasonable Persons Would Contemplate. The fundamental rationale for contract liability is that the parties contemplated that the funeral director or cemetery would be liable for missteps causing mental or emotional distress. As a result, in the absence of any discussion or agreement between the parties about special circumstances or sensitivities when forming the contract, it seems appropriate that the jury or the court should base the damage award on what reasonable persons in the positions of the parties would have foreseen. This is consistent with the approach for calculating “general” consequential damages described in one of the most famous contract cases, Hadley v. Baxendale. 156 Eng. Rep. 145 (Exch. 1854).
(2) Actual Damage Awards in Selected Cases. An analysis of some reported cases indicates a judicial desire for consistency and objectivity. For example, after discussing a funeral director’s failures, and the family’s resulting mental and emotional distress, an appellate court may revise the jury’s verdict to be consistent with damage awards in other reported cases. See, e.g., Jones v. City of N.Y., 915 N.Y.S.2d 73 (App. Div. 2011) (considering two prior New York cases); Hirst v. Elgin Metal Casket Co., 438 F. Supp. 906, 909 n.8 (D.C. Mont. 1977) (considering cases from three other jurisdictions).
The damage awards in some of the cases discussed at the beginning of this article, and a few others, cluster near either $100,000 or $30,000 (in current value). For example, in Flores v. Baca, 871 P.2d 962 (N.M. 1994), the funeral director embalmed only the top half of the decedent. “The medical examiner . . . testified that he had not seen a more inadequate case of embalming.” Id. at 965. The decedent’s surviving spouse and all 13 children sued. The jury awarded the family a total of $500,000, but a new trial solely on the issue of damages dropped the award to $100,000 total. The New Mexico Supreme Court affirmed, stating that the amount was “not inconsistent with substantial justice.” Id. at 970.
In the 2012 Michigan case involving the casket sliding out of the hearse, and the deceased grandmother tumbling out on the pavement, the family settled for $80,000. Ellen Connelly, Funeral Home Drops Casket and Body Falls out, Family Gets $80,000 Payment, GlobalPost, Aug. 17, 2012; see also Smith v. Clark, 494 S.W.2d 192 (Tex. App. 1973) (involving another embalming error; the jury initially awarded the current equivalent of $185,000, and the appellate court reduced the combined award to the four children to approximately $77,000 and indicated that a fifth plaintiff might recover damages in a new trial).
An overconfident undertaker told the decedent’s son that embalming would preserve the mother’s corpse “practically forever.” Chelini v. Niere, 188 P.2d 564 (Cal. App. 1948), aff’d, 196 P.2d 915 (Cal. 1948). Twenty months later, when exhumed, the body was a “rotted, decomposed . . . mass.” The jury awarded the son the equivalent of $115,000 plus an extra $10,000 in punitive damages in today’s dollars. On appeal, the court affirmed the general damage award but eliminated the punitive damages.
Other cases cluster around $30,000 (in current value). For example, in the case of the odiferous decedent unable to attend his own funeral because of bad embalming, the plaintiff’s attorney asked for over $300,000 (in current value). The jury awarded one-tenth of that amount (approximately $30,000 in current value). Ultimately, the Colorado Supreme Court reversed and denied any recovery based on the old restriction that there could be no recovery unless the family had suffered a physical injury from an impact. Hall v. Jackson, 134 P. 151 (Colo. 1913), overruled in part, Towns v. Anderson, 579 P.2d 1163, 1164 (Colo. 1978) (en banc); see also Hirst v. Elgin Metal Casket Co., 438 F. Supp. 906, 907 (D.C. Mont. 1977) (limiting a family’s damage award to $27,500 total; they paid for a hermetically sealed casket, but upon exhumation the decedent’s face was moldy due to water in the casket).
In two of the older cases discussed at the beginning of this article, the courts denied relief completely. In the case of the hearse colliding with the train, and the funeral director failing to “gather up the scattered remains of the dead body,” the court denied recovery because the plaintiffs suffered no physical injuries. Nail v. McCollough, 212 P. 981, 982 (Okla. 1923). Similarly, when a driver of the hearse and the attendants drove off to protest low wages, leaving the family at the curb with the corpse and casket and no transportation to the cemetery, the court denied relief because there were no physical injuries. Gatzow, 81 N.W. at 1009.
There are a wide range of damage awards outside these clusters. For example, in Jones v. City of New York, 915 N.Y.S.2d 73, an appellate court reduced the trial court’s award for emotional distress from $800,000 to $400,000. In that case, the morgue released the son’s body to the wrong funeral home. When the mistake was discovered and the body found a week later buried in Pennsylvania, it had decomposed to the point where an open-casket funeral was no longer possible. At the other extreme, in a case involving bad lawn care, a court awarded $300 total for mental and emotional distress, which was $50 for each visit to the cemetery from 1991 to 1994. Yochim v. Mt. Hope Cemetery Ass’n, 163 Misc. 2d 1054 (Yonkers, NY, City Ct. 1994).
In reviewing reported cases, I found no indication that the courts or juries were following the often-discussed “three times specials” rule of thumb that estimates general damages for pain and suffering at three times the amount of special damages in a given case. See Marc Galanter & Mia Cahill, “Most Cases Settle”: Judicial Promotion and the Regulation of Settlements, 46 Stan. L. Rev. 1339, 1375 (1994) (discussing damages for pain and suffering equal to three times the amount of economic damages, generally in tort cases). Scholars point out a lack of empirical evidence for the “three times” rule of thumb and suggest that “general damages equal to special damages may be more accurate.” Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555, 1622 (2003) (referring to “three times specials” as “folklore”).
(3) The Need to Prove “Severe” Mental or Emotional Distress in Contracts Cases. Although contract law dispenses with the three traditional tort restrictions, courts often impose a different restriction—that only “severe” mental or emotional distress is compensable. For example, in Flores v. Baca, 871 P.2d 962 (N.M. 1994), the case in which only the top half of the decedent was embalmed, the New Mexico Supreme Court adopted the requirement that plaintiffs in these cases must prove “severe” or “serious” mental distress to recover for breach of contract. The purpose is to “serve[] as a threshold guarantee of genuineness” and to “separate the . . . distress that [the] skilled . . . services of a funeral director are intended to allay” from the “[g]rief . . . ordinarily associated with any funeral and burial service.” Id. at 970. The Restatement supports this requirement. Restatement (Second) of Contracts § 353 (Am. Law Inst. 1981). Courts describe “severe” as so extreme that “no reasonable person could be expected to endure it.” See 74 Am. Jur., Torts, § 38, at 692 (noting four different approaches to defining “severe”).
(4) “Special” Damages in Contract Cases. As a further complication, consistent with the landmark case of Hadley v. Baxendale, additional damages (sometimes called “special” damages) may be available if the customer explains, when negotiating the contract, that unusually high damages will result from a breach.
This may have been a factor in the Chelini case, discussed above. In Chelini, when hiring the undertaker, the decedent’s son told the undertaker he planned to have his mother’s body exhumed after the war, that the funeral director should then place a certain ring on the mother’s finger and slippers on her feet, and the body (in the casket) should then be moved to a different cemetery where the casket would be placed inside a lead box and buried in a newly erected family vault. 196 P.2d at 916. The funeral director accepted an extra $25 for agreeing to provide these services. This detailed discussion about special circumstances may have enhanced the damages when, after the war (about two years later), the son discovered at the exhumation that his mother’s body had become a “rotted, decomposed . . . mass.” Id.
(5) Proving Actual Damages—Is Independent Medical Evidence
Necessary? In these cases, a plaintiff should be obligated to prove actual damages to the extent of any recovery. The only exception should be in the highly unlikely event that the parties agreed in advance on the amount of liquidated damages payable upon a particular breach, which actually occurred. See Wallace Real Estate Invest., Inc. v. Groves, 881 P.2d 1010 (Wash. 1994) (indicating the plaintiff need not prove actual damages to collect an agreed-upon liquidated damage amount).
There are several practical difficulties in proving these damages. A basic problem is separating the family’s general grief and distress because of the decedent’s death from their particular distress caused by the funeral director’s (or cemetery’s) missteps. See Flores, 871 P.2d at 970. Further, there is the matter of evaluating the plaintiff’s mental, emotional, and possibly physical state before the decedent died, compared to that person’s situation after the funeral director’s (or cemetery’s) errors. Specifically, if the plaintiff complains of headaches, lack of appetite, depression, and disturbed sleep, what reliable evidence will be needed to prove the plaintiff’s condition both before and after the blunder? Should the plaintiff’s own selfserving testimony be sufficient? Or should the court require independent medical evidence, such as the testimony of medical experts? Should absence from work be sufficient proof? Moreover, it may be impossible to precisely determine how far into the future the symptoms will continue and their future severity.
One court observed that all this uncertainly can lead to verdicts generated more by the “ingenuity of counsel, [exaggeration and actual fraud] by the clients, and the prejudices of the jury” than valid standards of just compensation. Huston v. Freemansburg, 212 Pa. 548, 550 (1905), quoted in Leavitt, supra, at 486 n.83.
Perhaps because of the relatively modest amounts often involved in these cases, the plaintiffs frequently do not appear to provide any independent medical evidence. For example, in Flores v. Baca, the surviving spouse merely testified about her “feelings of distress, including sleeplessness, lack of appetite, and depression . . . [and later alleged] long-term emotional pain.” 871 P.2d at 965. She also testified about her “feelings that [her husband’s] body was disgraced and dishonored.” Id. at 970. As discussed above, the New Mexico Supreme Court affirmed an award of $100,000.
Nevertheless, some plaintiffs have provided expert medical testimony or other independent medical evidence. Although candidly recognizing the limits of medical analysis in these areas, some courts (and presumably some juries) appear to have given weight to such evidence. One court observed:
Towns v. Anderson, 579 P.2d 1163, 1164 (Colo. 1978) (en banc). Consistent with this view, a court stated that in mental or emotional distress cases, “we have often considered medical corroboration to be . . . highly probative.” Sparrow v. Demonico, 960 N.E.2d 296, 304 (Mass. 2012) (contrasting emotional distress cases with capacity to contract cases; for the latter the court required medical evidence). The court stated that “[s]uch corroboration not only guards against feigned or fraudulent claims of mental distress, but also alleviates the concern that even honest plaintiffs erroneously might convince themselves that they suffer from emotional distress . . . thereby compounding the problem of fraudulent lawsuits.” Id. at 305.
As an example, in the case of the funeral director’s false representation that the embalming would preserve the body “practically forever,” the plaintiff presented expert testimony concerning his mental and physical condition before and after the cemetery nightmare. The physician testified that (i) the son likely suffered a “cerebral spasm” the night of the horror—a “cerebral spasm” can be a precursor to a stroke; (ii) the next day, in the doctor’s office, the son’s blood pressure was 230; and (iii) thereafter, the son was no longer able to work without becoming faint. Chelini, 188 P.2d at 566. Again, in that case, the California Supreme Court affirmed the trial court award of approximately $115,000 in current value.
(6) “Self-Inflicted” Mental or Emotional Distress. Another factor sometimes at play is the extent to which the family was responsible for its own trauma. In Hirst v. Elgin Metal Casket Co., 438 F. Supp. at 908, the court reduced the jury award after describing some of the plaintiffs’ distress as “self-inflicted.” Some plaintiffs attended an exhumation when not required, and several of them talked unnecessarily about the unfortunate occurrences (such as the decomposition of the body over time).
Practical Conclusions and Future Nightmares
Contract law now provides a dependable avenue for avoiding the obstacles that often blocked these lawsuits from getting to a jury under tort law. But contract law imposes its own restrictions, such as that the plaintiff must prove severe mental or emotional distress. Also, in contract, it is appropriate that a judge or reviewing court limit a jury’s award to a reasonable, foreseeable amount because the recovery is founded on what the parties should have contemplated when they entered into the contract. Reviewing courts should reduce (or increase) jury awards to align the damage amounts with recoveries in similar cases. In light of the modest amounts involved in many of these cases, it is appropriate that expert or other independent medical evidence should not be strictly required.
A comprehensive examination of the law of Halloween nightmares would consider additional issues. Important topics would include (i) whether various relatives and friends should have standing to sue (as intended third-party beneficiaries of the contract or otherwise); (ii) the availability of punitive damages or other damages if a tort action could be maintained; (iii) whether funeral providers and cemeteries can disclaim liability in advance, in a written contract; and (iv) possible criminal penalties for abuse of a corpse. An examination of those areas doubtlessly would dig up more nightmares, but those subjects are beyond the scope of this article. Pleasant dreams to all.
