The Wrong Plot

January 30, 2025

The Maryland Appellate Court has held that a motion for judgment notwithstanding the verdict had been properly denied to a defendant

A cemetery has a duty of care in disinterring or otherwise handling a dead body. Although expert testimony may be required in a negligence suit against a cemetery, it was not required in this case. Industry standards can be admitted to show the applicable standard of care in a negligence cause of action, and in this case, Mrs. Daniels presented evidence that the industry standard is to have a mortician present at a disinterment, and if the outer burial container (“OBC”) becomes compromised before it is removed from the ground, the mortician should transfer the remains to a new OBC. Based on this evidence, a reasonable fact finder could determine that the applicable standard of care owed by Osiris during the disinterment was to have a mortician present, and once the lid cracked and the OBC became compromised, the mortician present should have moved Mr. Daniels’ remains from the compromised OBC to the new OBC before continuing to bring Mr. Daniels’ remains out of the grave.

Based on the evidence presented, and the inferences that could be drawn from that evidence, a reasonable fact finder could determine that Osiris breached its duty to exercise reasonable care by failing to have a mortician present to transfer Mr. Daniels’ remains to a new OBC when the OBC in which he was buried became compromised.

The deceased had been interred at Lincoln Memorial Cemetery

In April 2017, Mrs. Daniels received a call from Shante Brown, a representative of Lincoln Memorial, advising her that Mr. Daniels had been interred in the wrong burial plot. Ms. Brown told Mrs. Daniels that Lincoln Memorial could disinter Mr. Daniels and reinter him into the correct plot. To do so, however, Mrs. Daniels would need to sign a release of liability for burying her son in the wrong plot. Mrs. Daniels refused to sign a release of liability. Mrs. Daniels testified that Lincoln Memorial staff subsequently began harassing her about removing Mr. Daniels from the burial plot, stating that Lincoln Memorial would remove Mr. Daniels from the plot with or without her permission. Mrs. Daniels then decided to move her son’s remains from Lincoln Memorial to a Muslim cemetery, Al-Firdaus Memorial Gardens (“Al-Firdaus”). Lincoln Memorial told her that they redid the authorization form, but when she went to sign, it had the same release language, which she refused to sign. She was then told to get authorization from the State’s Attorney’s Office to remove the remains, which she did. Lincoln Memorial told Mrs. Daniels that she could take possession of Mr. Daniels’ remains at 10:00 a.m. on July 5, 2017, but she was not required to be present at the disinterment.

It did not go well

On July 5, 2017 at 10:00 a.m., Mrs. Daniels, her daughter, and her granddaughter arrived at Lincoln Memorial to take possession of Mr. Daniels’ remains. Two representatives from Al-Firdaus, a mortician and a transporter, arrived shortly thereafter. The group planned to take possession of Mr. Daniels’ remains, transport them to Al-Firdaus, and reinter them there. A mortician is required to be at a disinterment because, if human remains must be moved, transported, or handled in any way, only a mortician may do so.

During the process

The cemetery operators then attempted to raise the OBC with the cracked lid out of the ground. Mrs. Daniels testified that they may have been planning to put another lid on after they brought it ground level, but as they were removing the OBC, it fell and the cracked lid “slid off to one side.” Mrs. Daniels saw her “son’s head hanging” and began to scream. Mrs. Daniels and her daughter walked away from the gravesite, but Mrs. Daniels’ granddaughter remained.

After another hour, Mrs. Daniels and her daughter returned to the gravesite. They returned after Mrs. Daniels’ granddaughter started walking toward them, and the cemetery operators motioned for Mrs. Daniels to come over, stating that they had put the top on. The cemetery operators again attempted to lift the OBC out of the ground. This time, the OBC lid came off, and the OBC fell back into the freshly excavated hole. Mrs. Daniels testified that the OBC fell with so much force that her son’s body “pop[ped] in the air,” and his remains then came back down and “partially spilled on the ground.” She screamed, walked away, and then saw the mortician from Lincoln Memorial arrive and yell at the cemetery operators, “telling them that they were so stupid, they couldn’t do anything right.” One of the cemetery operators then “got a shovel and picked [her] son up like he was roadkill and put him in” the broken OBC. A cemetery operator then used the backhoe to flip the OBC “right side up” and lift it to ground level. Once the OBC was on ground level, the mortician and her assistant put Mr. Daniels’ remains in a body bag and “slung him in the new [OBC] like he was a sack of potatoes.” The new OBC was at the gravesite when they arrived. They put a new top on and placed the OBC next to the Al-Firdaus transport truck.

Mrs. Daniels and her daughter both testified that a mortician arrived only after Mr. Daniels’ remains spilled out of the OBC and into the burial plot. Evidence was presented that Maryland state law requires a mortician be present during a disinterment because only morticians are allowed to touch or handle human remains.

Verdict

The jury found that Osiris was negligent in how it conducted Mr. Daniels’ disinterment. It further found that Mrs. Daniels did not assume the risk of her injuries. The jury awarded Mrs. Daniels $3,040 in expenses and $357,000 in noneconomic damages.

Appeal

The circuit court did not err in denying Osiris’ motion for judgment notwithstanding the verdict.

(Mike Frisch)