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Personal Injury

A Delay in Notifying Next of Kin of their Loved One’s death Violates the Right of Sepulcher

September 17, 2015 | Dominique A. Penson

A New York court has held that the City of New York violated the right of sepulcher by failing to timely notify a family that one of its members died in a car accident.  The common law right of sepulcher gives the next of kin an absolute right to the immediate possession of a decedent’s body for preservation and burial.  In order for a right-of-sepulcher claim to accrue, (1) there must be interference with the next of kin’s immediate possession of decedent’s body and (2) the interference must cause mental anguish, which is generally presumed.  In the case of Rugova v. City of New York, even though the City knew the decedent’s identity and as soon as it responded to the accident, no one notified the next of kin of his death.  Because the decedent evidently died due to an accident, the Medical Examiner’s office was required by law to perform an autopsy.  Therefore, the medical examiner took possession of the body, but neither it, nor any of the police officers who investigated the accident notified the decedent’s family.  When the decedent did not arrive home after a date with his girlfriend, both his family and the girlfriend grew anxious and began searching for him, calling around to local police precincts and hospitals.  Ultimately, they learned of his death 36 hours after the accident from an article in the Daily News about a hit-and-run accident on the Bronx River Parkway.

In defense of the resulting suit by the family, the City of New York contended that it did not have any duty to notify the family of the decedent’s death or that the City took possession of his body, and in any event the delay in question was minimal and occasioned by governmental functions for which the City is immune from liability.  The court disagreed, saying that the City had stated no compelling reason to depart from clear precedent to bar a cause of action for loss of sepulcher in this instance  While the City argued that any mental anguish resulting from the delay in learning of the death of their loved one was minimal, the distinction was one of degree, not kind, and went to the measure of damages and not the right of recovery.  And in rejecting the City’s claim to immunity, the court stated that the imposition of liability against the City for an inaccurate report of the death of a close relative reflects a policy that a municipality’s duty of accurate communication is both ministerial and owed directly to the next of kin. Likewise, this the next of kin’s right to immediate possession of a decedent’s body may arise from the municipality’s failure to notify them of the death presumes a ministerial duty owed directly to the immediate family.  As to plaintiffs’ claim of loss of sepulcher, whether the approximately 36-hour delay in informing the next of kin that they could take possession of decedent’s remains caused any interference with the family’s burial rights, which the City disputed, the court held that this posed an issue of fact for a jury to resolve.


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