They Bury Horses, Don’t They?
The Delaware Court of Chancery denied a request for a TRO brought to recover the body of a deceased horse from a landfill
This lawsuit is a tribute to the life of Petitioner Brenton Marckese’s Clydesdale, Michigan Breeze, who died from a hit and run the week before Christmas. Mr. Marckese was thrown from Breeze in the car accident and taken to the hospital. He learned after his release that Breeze was euthanized and that her body was taken to a landfill operated by Respondent, the Delaware Solid Waste Authority (“DSWA”). Mr. Marckese desires a more dignified end for his horse. He asks the court to order the landfill to allow him to retrieve Breeze’s body for cremation. He requests this relief through the procedural vehicle of a motion for a temporary restraining order. Regrettably, the court cannot grant Mr. Marckese’s motion. DSWA does not know exactly where Breeze’s remains lie. They have isolated the location to an acre of land approximately ten feet deep, where three other large animal carcasses were deposited the same day. There is no doubt that Mr. Marckese would dig up that entire acre himself, given access and a shovel. But there are very good reasons for preventing Delawareans from digging in landfills to unearth animal carcasses, no matter how loved the animal. Balanced against these interests, the motion fails.
After the hit and run
Mr. Marckese was examined and given pain medication—which he was reluctant to take—at the hospital. While at the hospital, Mr. Marckese learned that Breeze had been euthanized but was unsure of what had happened to her remains. He was released in the early hours of December 18. His girlfriend drove him home. Later that day Mr. Marckese learned that Sam [Breeze’s farrier] had called a contractor to retrieve Breeze’s body. After calling the contractor, Mr. Marckese learned that Breeze’s body had been taken to the Sandtown Landfill, in Felton. Mr. Marckese arrived at the landfill at 7 a.m. the next morning to make arrangements to retrieve Breeze’s body.
He was told to get a court order; he tried here
Balancing the equities requires a court to compare the relative importance of interests that defy conventional approaches to valuation. In that way, it is an unenviable task, particularly where the competing interests are so disparate as to seem totally incomparable. This case is a prime example. How does one compare the solace of knowing that the remains of one’s beloved animal companion have been treated with dignity against the dangers of disturbing a meticulously engineered landfill? Forget comparing apples to oranges, it’s more like comparing apples to differential calculus. There is clarity, however, as to one factor that carries the day here—the potential for harm to the health and safety of others. Landfills are delicate things.
They must both contain waste and capture waste’s hazardous byproducts—leachate, gases, disease, and the like. And descriptions of landfills sound like lines from futuristic stories (e.g., “geomembrane liners”) or conjure scenes from science fiction films (e.g., landfills require “miles of pipe buried within the waste” to redirect deadly gases and daily coverings to stave off vermin). Any disturbance to a landfill risks damaging their health and safety protections, exposing DSWA’s workers and Felton’s residents to serious harm. The potential precedent of granting the motion could pose even greater harm, as the risks present here would rise exponentially were any animal owner allowed to dig-up her inadvertently landfilled companion. The potential for such harm outweighs any right Mr. Marckese has to retrieve the remains of his beloved horse.
The court does not issue this decision lightly. Mr. Marckese’s love for Breeze is undeniable, and his desire to treat her remains with respect is most praiseworthy. Mr. Marckese’s Motion for a TRO, however, is denied.
(Mike Frisch)