The common law right of sepulcher is the right of the surviving next of kin to find “solace and comfort” in the ritual of undisturbed burial, and permits the next of kin the right to recover for solely emotional damages which may arise as a result of interference with their loved one’s body after death.1
This right evolved from millennia of observation and ritual in virtually every human culture, from the earliest pre-Christian civilizations (Egyptian mummification; Roman civil law imposing duty of burial; Biblical references: proper burial essential to afterlife). Interference with such rituals and bodily remains has been recognized as a solely emotional injury. While New York courts have been generally reluctant to award damages for solely emotional injuries, violation of sepulcher is a recognized exception.2
The New York Court of Appeals has recognized this right of recovery for over 80 years. In Gostkowski v. Roman Catholic Church, plaintiff filed an action against defendants, a church and its priest, “for the wanton desecration of [his decedent-wife’s] grave.” A priest ordered the body exhumed and reinterred, without notice to the family, to another plot the priest believed more befitting the status of the plaintiff-husband, a Polish immigrant, and, thereafter, redressed the inquiring, grieving husband with bigotry. Appellant-church, although conceding the propriety of compensatory damages for mental suffering and anguish, contested accumulated punitive damages upon finding of “willful and malicious and wanton” conduct.
The Gostkowski court, in affirming the jury’s finding of such conduct here, held jury awards may permissibly include both compensatory damages for mental suffering and anguish, and punitive damages, upon finding of “willful and malicious and wanton” conduct for wanton desecration of a grave. “Punitive damages and damages for wounded feelings, though similar, are not the same. Whoso disturbs a dead body…does so at his own risk… If he is willful and malicious in his wrong-doing, he should be punished to deter others from acting likewise. The husband has the right to protect the remains of the dead which should be left undisturbed unless reason of substance is brought forward for disturbing their repose.”
Thus, recovery for solely sentimental damages for any interference with a body after interment is well established, and separate, punitive damages are appropriate upon finding of willful and malicious conduct. As Gostkowski professed, “[j]uries may be allowed to give damages that express indignation at the defendants’ wrong rather than a value set on plaintiff’s loss.”
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The common law right of sepulcher is the right of the surviving next of kin to find “solace and comfort” in the ritual of undisturbed burial, and permits the next of kin the right to recover for solely emotional damages which may arise as a result of interference with their loved one’s body after death.1
This right evolved from millennia of observation and ritual in virtually every human culture, from the earliest pre-Christian civilizations (Egyptian mummification; Roman civil law imposing duty of burial; Biblical references: proper burial essential to afterlife). Interference with such rituals and bodily remains has been recognized as a solely emotional injury. While New York courts have been generally reluctant to award damages for solely emotional injuries, violation of sepulcher is a recognized exception.2
The New York Court of Appeals has recognized this right of recovery for over 80 years. In Gostkowski v. Roman Catholic Church, plaintiff filed an action against defendants, a church and its priest, “for the wanton desecration of [his decedent-wife’s] grave.” A priest ordered the body exhumed and reinterred, without notice to the family, to another plot the priest believed more befitting the status of the plaintiff-husband, a Polish immigrant, and, thereafter, redressed the inquiring, grieving husband with bigotry. Appellant-church, although conceding the propriety of compensatory damages for mental suffering and anguish, contested accumulated punitive damages upon finding of “willful and malicious and wanton” conduct.
The Gostkowski court, in affirming the jury’s finding of such conduct here, held jury awards may permissibly include both compensatory damages for mental suffering and anguish, and punitive damages, upon finding of “willful and malicious and wanton” conduct for wanton desecration of a grave. “Punitive damages and damages for wounded feelings, though similar, are not the same. Whoso disturbs a dead body…does so at his own risk… If he is willful and malicious in his wrong-doing, he should be punished to deter others from acting likewise. The husband has the right to protect the remains of the dead which should be left undisturbed unless reason of substance is brought forward for disturbing their repose.”
Thus, recovery for solely sentimental damages for any interference with a body after interment is well established, and separate, punitive damages are appropriate upon finding of willful and malicious conduct. As Gostkowski professed, “[j]uries may be allowed to give damages that express indignation at the defendants’ wrong rather than a value set on plaintiff’s loss.”
Read more: http://www.newyorklawjournal.com/id=1202722313813/Right-of-Sepulcher-Reconciling-Changing-Views-and-Standards#ixzz3lMuf7KbF