116 Misc. 2d 227 | N.Y. City Civ. Ct. | 1982
OPINION OF THE COURT
Plaintiff Leola Thompson brings an action for negligence in the handling and embalming of her son’s remains by defendant Duncan Bros. Funeral Homes, Inc. Plaintiff called as witnesses Mrs. Thompson herself and Mr. Williams, the Georgia funeral director who received the body which had been shipped from New York after the embalming. Defendant called as its witness Mr. Duncan, the director of the defendant corporation. The court has made a diligent search of the law in this jurisdiction and notes that no case in point has been reported. Accordingly, this is a case of first impression.
The following facts are undisputed. Plaintiff’s son died of a bullet wound at Morrisania Hospital on July 16, 1975. His remains were embalmed on or about July 18, 1975 by defendant at defendant’s place of business in New York City. After being displayed there for one day, the remains
Plaintiff alleges that by reason of the negligent supervision, operation, management and control of the embalming of her son’s body, which caused it to be in the condition described above on the evening of the day of its arrival in Georgia, plaintiff sustained the following personal injuries: psychic trauma, traumatic neurosis manifested by reactive depression and anxiety, acute reactive anxiety and depression, aggravated hypertension with increased blood pressure, headaches, dizziness, palpitations and nocturia, insomnia and nightmares, uncontrollable crying, weight gain, leg pains, impaired memory, disorientation and impairment of personality and appearance. These injuries are alleged to be permanent. Plaintiff further alleges that she was confined to bed for approximately two months and is partially and intermittently to date. Plaintiff also alleges that she was incapacitated from her employment for approximately two months and remains so partially. Lastly, she alleges the following special damages: physicians’ services at $200; medical supplies at $25 and household help at approximately $1,000. Plaintiff seeks compensatory damages in the sum of $150,000. At the end of the trial, plaintiff withdrew its second cause of action for willful, wanton negligence wherein plaintiff had sought punitive damages in the same amount.
At trial plaintiff testified as to the appearance of her son’s remains on their arrival in Georgia as swollen, leaking and having facial distortions; she contrasted this sight to her memory of him alive as a strong and handsome baseball player in his early 30’s. She contended that her sleep is still interrupted by the nightmares caused by this awesome memory. Mr. Williams, the Georgia funeral director, testified that a tissue gas condition existed in the remains which had set in before the arrival at his funeral
Mr. Duncan, director of defendant corporation, testified that the remains had been properly embalmed and that he had viewed them while they were in New York. He further testified that the faulty condition discovered after arrival may be attributed to the fact that a complete autopsy had been performed by the medical examiner, contending that embalming is made more difficult for an embalmer under such conditions.
In order to sustain a cause of action in negligence, the plaintiff must prove that a legal duty was owed to him, that this duty was not performed or was improperly performed, and that injury resulted as a consequence thereof (1A Warren’s NY Negligence, § 3, p 134; also see Holodook v Spencer, 43 AD2d 129, affd 36 NY2d 35). Case law has established that an undertaker owes a duty to refrain from negligent conduct in preparing a dead body for burial (Baumann v White, 234 NYS2d 272). In addition, it has been settled that next of kin have a cause of action for mental anguish and shock suffered as a result of a defendant undertaker’s negligent preparation of a body for burial (Baumann v White, 234 NYS2d 272, 273, supra).
It is the defendant’s position that excessive and negligent handling by American Airlines, and/or the failure of the medical examiner to release the remains to the defendant for two days could have also caused the tissue gas condition rather than a breach of the embalmer’s duty to proceed at his task in a nonnegligent manner. The only testimony presented to the court to buttress defendant’s position, however, was that of an interested witness, Mr. Duncan himself. The court notes that the defendant failed to call American Airlines, the medical examiner or its employee embalmer as a witness. It also failed to name either American Airlines or the medical examiner as a third-party defendant. Defendant nevertheless cites
The courts have not been primarily concerned with the extent of physical mishandling or injury to a dead body per se, but rather how much improper handling or injury affected feelings and emotions of surviving kin. (Lott v State of New York, 32 Misc 2d 296, 298.) In the case at bar, a mother’s final visual memory of her son is one of decomposed, swollen, distorted and leaking remains. Such a memory will clearly cast an oppressive shadow over the psyche of this mother for the remainder of her life. It is unlikely to diminish with time but rather will continue to affect her profoundly. The court notes its extreme difficulty in establishing a monetary amount to be deemed compensation to the plaintiff under these circumstances but nevertheless recognizes its duty to do so. Accordingly, the court awards plaintiff a judgment in the amount of $35,000. The clerk is directed to enter judgment in said amount against the defendant.