Suing negligent cemetery for emotional distress?

by A
(San Mateo, CA)

My uncle would like to sue for emotional distress after it was found that his wife's remains had been tampered with and relocated without his knowledge. The situation came to light as my uncle was preparing to bury his only son next to my late aunt in their private family vault.

My uncle noticed the vault had been opened and the casket resealed sloppily and demanded to open the casket. His wife's remains had been mostly removed and relocated without proper notification or license from the local authorities to do so.

The reasoning given has been that the remains had deteriorated in such a way that they were giving off a horrible smell and several visitors to nearby graves had complained. I have done some research and believe that this type of deterioration happens when no air is allowed into a casket or possibly the embalmment was not correctly done.

Also, there is a clause in the contract signed by my uncle, his wife, and the administrator of the cemetery that states that notice would be given if such a need arose, and language that includes perpetual care of the remains' resting site.

Since this ordeal occurred, my uncle has sustained a heart attack, severe depression, loss of consortium, and no longer has much will to keep going after not only the loss of his son, but also the desecration of what should have been his wife's resting place.

What actions are he entitled to sue for, and whom is he entitled to sue?

I was thinking possibilities of actions being trespass, desecration of human remains, breach of contract, intentional infliction of emotional distress, negligent infliction of emotional distress, suppression of facts, and abuse of a corpse by the cemetery.

Also, I am wondering if actions may be brought against the funeral home, the casket company, and the contractor and fabricator of the stand-alone, above-ground vault that my aunt and uncle purchased and had built on their plot.

We would greatly appreciate any information and perspective you can give on this legal issue. Thank you.

Visitor Question:
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ANSWER for "Suing negligent cemetery for emotional distress?":

A (San Mateo, CA):

Let's break this down...

California has a four (4) year statute of limitations for breach of contract. That means if your uncle signed the contract over four years ago he has likely lost his legal right to a breach of contract suit. To learn more about the statute of limitations periods in California go to the website for the Judicial Branch of California.

From the facts you present, your uncle did not own or manage the property upon which the vault was located. As a result, he did not have a legitimate claim for trespassing. To have a claim for trespassing the person alleging it has to either own or manage the property.

Moreover, the person alleging trespass would have had to have previously warned the purported trespasser he or she was not permitted on the property. That doesn't seem to be the case here.

A claim for emotional distress may be a viable course of action. In California, bereaved family members may sue a morgue, funeral home, or other entity which engages in improper burial practices. In your uncle's case, that practice may have been the unauthorized removal of the body parts belonging to his wife.

Seek the advice and counsel of several experienced personal injury attorneys. Most will not charge for initial consultations. Be sure your uncle goes with you to the consultations. Bring along with you the contract for the burial and any other documents related to your claim.

The above is general information. Laws change frequently, and across jurisdictions. You should get a personalized case evaluation from an attorney licensed in your state. Find a local attorney to give you a free case review here, or call (888) 647-2490.

Best of luck,

Judge Calisi

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