Understanding Mortuary and Crematory Negligence in California

By Evan Koch, Partner & Trial Attorney

When families entrust a mortuary or crematory with the remains of a loved one, the law recognizes the extraordinary sensitivity of that relationship and the significant trauma that can be caused by the failure of a mortuary or crematory to handle loved ones with appropriate care. California law, therefore, provides distinct legal pathways for close family members to seek accountability when funeral homes or crematories mishandle human remains or breach funeral service contracts (mortuary negligence). This article explains who may sue, what claims and damages are commonly available to family members, and offers real-life examples of cases that Baker, Burton & Lundy has previously handled in this area. 

What Is Mortuary and Crematory Negligence?

Mortuary and crematory negligence typically involves the mishandling of human remains or the failure to perform funeral-related services with reasonable care. Common cases handled by the attorneys at Baker, Burton & Lundy include the misidentification or mix-up of remains, improper storage or transport, unauthorized embalming, cremation, or burial, failure to follow religious or contractual instructions, and loss of ashes or commingling of remains.

When these situations occur, the consequences can be catastrophic for the remaining family members. Their grieving process is interrupted, and their ability to bury or cremate their loved one with dignity is denied. In one of the leading California cases on mortuary and crematory negligence, the California Supreme Court recognized the impact that the mishandling of human remains can have on the remaining family members when it noted that “[o]ne who prepares a human body for burial and conducts a funeral usually deals with the living in their most difficult and delicate moments…. The exhibition of callousness or indifference, the offer of insult and indignity, can, of course, inflict no injury on the dead, but they can visit agony akin to torture on the living.” (Christensen v. Sup. Ct. (1991) 54 Cal. 3d 868, 875). 

To recover damages for the emotional distress caused by the mishandling of human remains, potential claims may exist against a mortuary or crematory for negligent mishandling of remains, negligence per se (based on statutory violations), breach of contract, and, in certain circumstances, unfair or deceptive business practices. 

Who Can Bring a Lawsuit Against a Mortuary and Crematory? 

Because those impacted most by the mishandling of human remains are the family members in mourning, California law allows the “close family members” of deceased individuals to pursue claims against negligent mortuaries and crematories. 

Who qualifies as a “close family member” depends on the circumstances of each case, but can range from a surviving spouse to a great-niece or grandparent, depending on the nature of the relationship and makeup of the family. Examples of who may potentially bring a claim against a mortuary or crematory are as follows:

• The individual who holds the decedent’s “right of disposition” under the law (often beginning with an agent under an advance directive, then surviving spouse or registered domestic partner, then adult children, parents, and so on). The person with the right of disposition generally has primary contractual authority with the mortuary or crematory.
• Close family members such as spouses, registered domestic partners, parents, and children often have standing to bring tort claims tied to the negligent or intentional mishandling of remains because the harm inherently impacts their grieving process.
• Siblings, nieces or nephews, grandparents, and other more remote family members may also have the right to bring a lawsuit depending on their relationship to the decedent, their role in funeral arrangements, and the nature of the wrongdoing. Courts focus on the foreseeability of emotional harm, the closeness of the relationship, and whether the conduct invaded the familial right to have a loved one’s remains treated with respect.

Because who has the right to bring a lawsuit can vary, it is common for multiple close relatives to assert claims arising from the same incident, especially where the misconduct was witnessed by the family as a whole (i.e., displaying the wrong body at a funeral service attended by several relatives).

Case Examples at Baker Burton & Lundy

The mishandling of human remains, unfortunately, happens quite often. Baker Burton & Lundy has represented numerous families in holding mortuaries and crematories accountable for the mishandling of their loved ones’ remains. The following are examples of cases handled by our office in this area:

• Mix-Up of Remains at a Viewing: For one family represented by Baker, Burton & Lundy, a mortuary presented the wrong body at a scheduled viewing attended by the decedent’s spouse, children, and grandchildren. Multiple family members expressed their concern that the body in the casket was not their relative to the funeral director, but he downplayed their concerns and attributed the differences to the changes the body goes through after death. The funeral director refused to check the tags on the body (which properly identified it) and, instead, convinced the family to proceed with the burial. Despite their concerns, they felt they had no choice but to proceed with the burial, only to find out one week later that the wrong body had been presented to them at the viewing, just as they had suspected. The family experienced significant emotional distress having to go through two funerals and burials for their loved one, and Baker, Burton & Lundy secured a significant settlement sum to compensate them for the pain they suffered. 
• Unauthorized Cremation: For another family represented by Baker, Burton & Lundy, a mortuary and crematory proceeded to cremate the family’s loved one without the required written authorizations or approval of the family. Despite the family members explicitly telling the mortuary that they did not want to proceed with the cremation, the mortuary disregarded the family members’ request and proceeded with the cremation anyway. The family member suffered severe emotional distress regarding the handling of their family member’s remains, and continues to question whether the ashes they were provided are, in fact, the ashes of their deceased family member. 
• Disintering Body Prior to Funeral: Another family represented by Baker, Burton & Lundy was informed the day before their family member’s funeral that a mistake had been made and that their loved one had been buried in another person’s grave. The family had to then authorize the disinterment (removal of a body from a grave), personally identify the body after it had been buried for over a week to ensure it was their loved one, then proceed with their burial services the following day, not knowing what had actually happened to their family member’s body in the week leading up to their services. 
• Commingling of Ashes: For another family represented by Baker, Burton & Lundy, the family had reason to believe that the ashes they were provided by the crematory were not, in fact, the ashes of their deceased family member. After a thorough investigation by the attorneys at Baker, Burton & Lundy, it was determined that the crematory had been cremating multiple bodies at the same time, mixing the ashes, and indiscriminately distributing them to various families. Baker, Burton & Lundy was able to secure a significant recovery for these families, who were never able to collect the ashes of their loved ones.

If you believe that you have been harmed by a mortuary or crematory related to the handling of your family member’s remains, contact the attorneys at Baker, Burton & Lundy to discuss whether you have a potential claim. 

DISCLAIMER: This article is provided for informational purposes only and does not constitute legal advice. The information contained herein should not be relied upon as a substitute for legal counsel. This article provides general information about the law, which may differ by jurisdiction and is subject to change. No attorney-client relationship is formed by reading this article or by contacting our firm through this website. Readers should consult with qualified legal counsel before taking any action based on this information.