According to the common law, it is the duty of a mortuary to deliver a dead body relatively in good condition to the relatives of the deceased person.  A mortuary must do their duty with utmost care and attention.  A reasonable expedience is expected from a mortuary that carries a dead body[i].  The mortuary will be held liable if any damage is caused to a dead body due to their negligence[ii].

However, a mortuary that fails to deliver a dead body that is donated to medical students cannot be held liable either in contract or tort.  In order to make a mortuary liable under a contract or tort, following conditions need to be satisfied.  They are:

• it must be proved that there existed a meeting of mind between a mortuary and the relatives of a deceased person regarding transportation method; and
• it must be proved that the provisions of law regarding donation of dead body gave the relatives of a deceased person the authority to decide about delivery of dead body[iii].

But a mortuary that has entered into a contract to ship the cremated remains of a dead body will be held liable for negligent performance, if cremated remains of a dead body are lost due to mortuary’s negligence.

Close relatives of the deceased person can sue the mortuary for tortuous infliction of emotional distress[iv]. In Quesada v. Oak Hill Improvement Co., 213 Cal. App. 3d 596 (Cal. App. 5th Dist. 1989), the plaintiff, sister of the deceased person, brought an action for damages against defendant/funeral home.  The allegation against defendant/funeral home was that the defendant/funeral home mishandled the dead body and caused emotional distress to plaintiff. The defendant/funeral home delivered another person’s dead body for burial.  In spite of the protest made by the relatives of the deceased person, the dead body was cremated in the plaintiff’s property.  However, the trial court ruled in favor of defendant/funeral home for the reason that there was no contractual relationship between plaintiff and defendant/funeral home.  Hence the defendant /funeral home had no duty towards plaintiff.

On appeal, the appellate court reversed the trial court judgment and held that the duty of defendant/funeral home was to be decided on the basis of test of foreseeability of injury to close relatives and friends of a deceased person.  The court of appeal further held that plaintiff is a close relative of the deceased person and is entitled for damages.

Every the family of a deceased person has a personal right to bury the dead body of their relative.  Any mutilation or disturbance of a dead body is considered as an interference with this personal right and it gives rise to an actionable wrong.  Whoever negligently withholds a dead body or prevents it from cremation or cut open a dead body is liable for causing emotional distress.  In order to bring an action for tortious infliction of emotional distress against the mortuary, a plaintiff must establish that a defendant has caused a serious emotional distress to plaintiff intentionally[v].

Apart from the tortuous liability, a mortuary will be imposed with criminal liability if a dead body is transported without removal permit or burial transit.

Expenses for transporting the remains/bodies of officers to their homes for burial, who die while performing their job in foreign countries, are paid on a written order of the Attorney General by the home country.

In the case of persons employed with National Park Service, and indigents the expenses for transportation of deceased employee’s body or indigent’s dead body will be given by the Secretary of the Interior.

[i] Moody v. Messer, 489 S.W.2d 319 (Tex. Civ. App. Corpus Christi 1972)|

[ii] Quesada v. Oak Hill Improvement Co., 213 Cal. App. 3d 596 (Cal. App. 5th Dist. 1989)

[iii] Hinze v. Baptist Memorial Hosp., 1990 Tenn. App. LEXIS 601 (Tenn. Ct. App. Aug. 23, 1990)

[iv] Contreraz v. Michelotti-Sawyers & Nordquist Mortuary, 271 Mont. 300 (Mont. 1995)

[v] Powell v. Grant Med. Ctr., 148 Ohio App. 3d 1 (Ohio Ct. App., Franklin County 2002)