I respectfully dissent. The majority opinion reversing the jury verdict is not supported by the law or facts.
The record demonstrates that, despite three days' advance notice, the cemetery waited until the last minute to prepare decedent's final resting place adjacent to her mother. Decedent's family and funeral director were notified after the wake, the evening before the scheduled burial ceremony, that an encroaching vault was discovered on decedent's burial plot. Rather than preparing the site, the cemetery foreman informed the funeral director that decedent could be buried at the foot of her mother's grave instead of in the family plot adjacent to her. Four witnesses, including the funeral director, testified that the cemetery did not provide any other options, such as to delay the burial, and did not indicate that the proposed burial spot was only temporary.
Decedent was buried the following morning in a hastily prepared site which was not at the foot of her mother. The family's plans to provide a common gravestone for decedent and her mother, moreover, could no longer be completed. When the decedent's family asked the cemetery foreman whether something could be done about decedent's burial site, they were misinformed that six or seven bodies would have to be moved to bury decedent in the correct spot next to her mother. The gravestone company intervened and, with the family, persisted until arrangements were ultimately made to bury decedent in the family plot. In short, the manner in which the cemetery resolved the problem was improper at every stage. And this problem was twofold. The decedent was not buried where initially scheduled. Nor was she buried in the location which the cemetery described as an alternative.
Decedent's daughter happened to discover decedent's body being disinterred and reburied while driving by the cemetery twelve days after the original burial. The cemetery foreman admitted that the cemetery had the duty to bury people with "respect and dignity" and that he had promised to inform the family about the reburial, but had failed to call them prior to doing so. The entire project of disinterring decedent, moving the encroaching vault, and reburying the decedent in the family plot took less than five hours. Under the circumstances, the jury could find that the preparations could have been completed prior to the original burial so that no reburial was necessary. *Page 288
This court of appeals has, contrary to the majority opinion, specifically recognized a cause of action for wrongful interment or burial under Ohio law. McCracken v. Ziehm (App. 1925), 3 Ohio Law Abs. 573. The McCracken court reversed a trial court judgment against the decedent's family and rejected the precise arguments made by the majority in this case. Specifically, this court previously stated malice or wantonness are not elements of this tort and the decedent's family may recover damages without proving severe emotional distress.1 The trial court did not err in following the law announced by this court in McCracken. The majority does not cite, apply, or distinguish McCracken, but reaches precisely the opposite result by "reversing and vacating" the jury verdict for plaintiff and entering judgment for defendant.
When it recently recognized a cause of action for infliction of emotional distress, the Ohio Supreme Court expanded Ohio common law but did not sound the death knell for the established tort of wrongful interment or burial. See Carney v. KnollwoodCemetery Assn. (1986), 33 Ohio App.3d 31, 34-35, 514 N.E.2d 430,433-434, fns. 4, 5. I believe that Ohio law recognizes, and should continue to recognize, that grieving relatives are uniquely vulnerable when their newly deceased family members are mishandled and wrongfully interred or buried. Decedent's family should not have had to endure this ordeal. Therefore, I respectfully dissent from the majority opinion.
1 I note that McCracken also saw the issue to be more likely one of principle than monetary compensation in stating that when severe emotional distress is not involved nominal damages are appropriate. In the case at bar, however, the cemetery never challenged the amount of damages awarded.