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Civil Liabilities

A civil action for breach of contract as to the care and burial of a corpse may be brought under certain circumstances. An individual who makes an agreement to properly bury a corpse may be subject to a lawsuit if he or she gives the body an improper burial, negligently allows the body to be taken from his or her custody, or allows the body to suffer indignities while in his or her possession.

General rules that govern damages for breach of contract have been applied in these actions.

In one case, an undertaker was sued for failure to embalm a body in such a manner that it would be preserved for a reasonably long time. The plaintiff recovered damages for illness and disability suffered when he found out that the body had disintegrated and become infested with insects as a result of the undertaker's breach of contract. However, exemplary or PUNITIVE DAMAGES are not recoverable in such cases.

Funeral or Burial Expenses Even in the absence of a contract or statute, a person may be liable for funeral or burial expenses based on his or her relationship to the decedent, such as a HUSBAND AND WIFE, or a PARENT AND CHILD. Statutes may also dictate liability. Some statutes designate the persons charged with the duty of burial but do not impose financial responsibility for burial or funeral expenses. Others impose financial liability on designated people in the order in which they are named in the statute.

Liability for burial expenses is not ordinarily imposed on someone merely because that person received a financial benefit as a result of the decedent's death. A joint tenant will not be charged with funeral expenses merely as a result of the joint ownership of property with the deceased.

Contractual Liability An individual who would not ordinarily be obligated to pay for burial or funeral expenses may accept responsibility to do so by contract. The terms of such an agreement must be very clear. The mere direction to furnish funeral services does not automatically create a contract for their payment. Liability for funeral services cannot be imposed arbitrarily. The obligation to pay the costs of a decent burial will be enforced by the law on those who should properly pay.

Although there is a lack of authority on the question of who should bear the costs of disinterment and reburial, it has generally been held as the responsibility of the person who caused it to be done.

Torts In the law of TORTS, there are a large number of cases involving the mishandling of corpses. These cases are concerned with mutilation, unauthorized disinterment, interference with proper burial, and other types of intentional disturbance. The breach of any duty as well as the unlawful invasion of any right existing with regard to a corpse is a tort for which an action may be commenced. For example, if the wrong body is delivered to a funeral home and the family discovers this when they attend the wake, they may be able to recover damages for mental suffering. Thus, the right of recovery is not necessarily based directly on injury to the corpse per se. Exemplary damages may be awarded in cases where the injury to plaintiffs was either malicious or resulting from gross negligence.

The award of damages is subject to appellate court review, and the adequacy or excessiveness of the amount awarded is dependent upon the particular circumstances of each case.

A tort action for damages in such cases may be maintained to protect the personal feelings of the survivors and, mainly, to compensate for the mental distress that has been caused.

Mutilation, Embalmment, and Autopsy An important component of the right to decent burial is the right to possession of the body in the same condition in which it is left by death. There is no additional basis for recovery where mutilation is caused simultaneously with death, as in the case of a person who dies in a train crash or who is fatally stabbed.

Some statutes authorize the delivery of corpses to medical colleges for dissection under certain conditions. It is mandatory, however, that the consent of relatives be obtained if such relatives can be found. Only a reasonable inquiry is necessary, the duty of which is on the school and on those delivering the body.

The unauthorized embalming of a body alone does not necessarily support a CAUSE OF ACTION for damages based upon mutilation or mishandling. When such unauthorized embalming occurs, combined with the resulting mental suffering of the next of kin and other such factors, a legal action may be brought. If, for example, an unauthorized embalming contrary to the decedent's religious beliefs is performed, an actionable wrong occurs for which damages may be granted.

Generally, an unauthorized autopsy is a tort. No liability exists, however, when an autopsy is performed in accordance with the consent of the individual having burial rights or pursuant to statute or the proper execution of the duties of the coroner.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Constituency to CosignerCorpse - Property And Possession Rights, Burial Rights, Duties As To Burial, Rights To Disinterment, Civil Liabilities