SW Legal Educational Publishing

Crematorium's Negligence Does Not Extend to Mortuaries
Description Crematorium mixed ashes of cremated bodies, for which it was negligent in tort. Appeals court held that the mortuaries that used the services of the crematorium were not vicariously liable for the negligent acts of the crematorium.
Topic Torts
Key Words Negligence, Vicarious Liability, Dead Bodies
C A S E   S U M M A R Y
Facts Various family members sued Pleasant Hill (PH), a crematorium, and 15 mortuaries that sent bodies to PH to be cremated, after it was discovered that PH engaged in improper practices, such as commingling cremated remains. Its negligence was established. The question before the court was if the mortuaries that sent bodies to PH for cremation may be held vicariously liable for negligent mishandling of the remains. The trial court held that the mortuaries had no duty to control the improper practices of PH. Plaintiffs appealed.
Decision Affirmed. Mortuaries, "like other professionals, have a duty to exercise the ordinary skill and competence of members of their profession, and a failure to discharge that duty will subject them to liability for their own negligence." Once "custody of the body is transferred to the crematorium, care of the body is entrusted to the crematorium, and the duty to protect the remains from inappropriate handling is thereupon delegated to that facility." Since the mortuaries did not know about the actions of PH, they "had not duty to ensure that the cremations were properly performed and cannot be held vicariously liable for the wrongful cremation practices."
Citation Hensell v. Santos Robinson Mortuary, 75 Cal.Rptr.2d 361 (Ct. App., Calif., 1998)

Back to Torts Listings

©1998  South-Western, All Rights Reserved