It is always difficult to deal with the loss of a loved one. This is especially true when a person dies suddenly in a motor vehicle accident. Unfortunately, there are times when a family's loss is compounded by the negligence of public officials who delay notifying an accident victim's next-of-kin. In some cases the family may seek damages for such delays under what is known as the “right of sepulcher.”
Sepulcher literally refers to a grave or burial vault. The right of sepulcher emerged through English, and later American, common law as guaranteeing a deceased person's right to a proper burial. In contemporary New York law, the right of sepulcher addresses the right of family members to promptly bury a loved one. As the Appellate Division, First Department, in Manhattan explained in a 2009case, a right of sepulcher claim exists whenever there is “interference with the next of kin's immediate possession of decedent's body and the interference has caused mental anguish, which is generally presumed.”
Rugova v. City of New York
Here is a recent example of how the courts apply the right of sepulcher. This case arose from a two-car accident in the Bronx. At 1 a.m. on a Sunday morning, two New York police officers responded to a report of an accident on the Bronx River Parkway. The officers arrived at the scene, where they saw one car “positioned across all three lanes of the roadway” and a second vehicle turned upside down on the road's shoulder. The second vehicle had hit a tree, ejecting the driver and killing him. The officers identified the deceased from his driver's license. Around 4 a.m., the deceased's body was taken to the Bronx Medical Examiner's Office, where an autopsy was performed at 9 a.m.
Nobody had informed the next-of-kin at this point. Family members went to a police precinct—not the one that received the accident call—and attempted to file a missing persons report. The officers told the family such a report “would not be taken because [the deceased] was an adult without any history of mental illness.” The family continued to search through the rest of Sunday and into Monday morning. Around 10 a.m. on Monday, the victim's sister saw a newspaper report about the accident and managed to locate the body at a local hospital. The victim's brother-in-law formally identified his body around noon that day.
The family later sued New York City, alleging the 36-hour delay in notifying the next-of-kin violated their right of sepulcher. Bronx County Supreme Court granted the family summary judgment on this issue while rejecting their other claims (which related to the performance of the autopsy). The city appealed, but the First Department affirmed the Supreme Court in a September 8order.
Rejecting the city's claim that the delay in notifying the family was insignificant, the First Department explained “the emotional harm alleged in this matter is the direct result of the breach of a duty to timely communicate information about a death to plaintiffs themselves.” Even if the actual harm was minimal, “the distinction is one of degree, not kind, and goes to the measure of damages and not the right of recovery.”
Need Help Following an Accident?If you are the surviving family member of someone who has died in a car accident, it is important to work with an experienced New York personal injury attorney who can advise you on all of your legal rights. The attorneys at Waldhauser & Nisar, LLP, can assist you with all types of legal issues arising from an accident. Contact us today if you would like to speak with someone immediately.