Tort Action for Interference with a Dead Body
Under the common law, a person commits a tort when he or she intentionally, recklessly, or negligently removes, withholds, mutilates, or operates upon the body of a dead person or when he or she prevents the proper burial or cremation of the dead body. The person who commits this tort is liable for damages to the family member or members of the deceased person.
In order to recover damages for the tort of interference with a dead body, the family member or members of the deceased person must have been entitled to the disposition of the deceased person's body. In other words, the family member or members must have been entitled to the exclusive control of the deceased person's body. In most states, the surviving spouse is generally the person who is deemed to be entitled to the disposition of the deceased person's body. If there is no surviving spouse, the next of kin are entitled to the disposition of the deceased person's body. The deceased person's executor or administrator may also be entitled to the disposition of the deceased person's body. However, there may be circumstances under which a person who has an interest in the deceased person's body, such as the deceased person's relatives, would be entitled to damages. For example, if the deceased person's relative was present when there was interference with the deceased person's body, that relative may be entitled to damages for his or her emotional distress.
If a deceased person leaves instructions with regard to the disposition of his or her body or his or her organs, the person with whom the deceased person left the instructions will not be liable if he or she follows those instructions. However, the instructions must be legally valid and binding on the person. Also, a coroner who performs an authorized autopsy on a deceased person's body is not liable for the tort of interference with a dead body.
The tort of interference with a dead body applies to intentional acts, reckless acts, and negligent acts. An undertaker who negligently or recklessly embalms a deceased person's body is liable for the tort if he or she harms the body or if he or she prevents the body from being properly buried or cremated.
Damages for the tort of interference with a dead body include damages for physical injuries and for emotional distress. A plaintiff does not need to sustain physical injuries in order to recover for his or her emotional distress.
Examples of the tort of interference with a dead body include an unauthorized autopsy, an unauthorized disinterment, holding or refusing to release a dead body for burial or cremation, and burying a dead body in the wrong cemetery.
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