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Funeral Service Related Torts


     By Shun Newbern Funeral Home, Cremation, Embalming Expert Witness and Consultant

PhoneCall Shun Newbern, MS at (562) 607-5281


When dealing with a legal matter that involves embalming failure or service complications, you must look at several essentials that will result in the best results. In that regard, you need a consultant or expert that knows mortuary law and the daily functions of funeral service.
Most funeral professionals, including myself find some torts mystifying, but I have they are quite simple. While teach Mortuary Law at the mortuary college, I have used my experience to enrich and inform the students of the issues that can arise in the funeral business. A tort consists of:

1. A duty of care;
2. A violation of that duty which results in:
3. Injury to a person or damage to property.

Consulting with many funeral matters, the difficulty lies often in defining the duty and sometimes whether there truly was a breach of that duty. In addition, making the effort to access the damage or the injury. What is the value of a wrong casket used for a service? What is the value of missing piece clothing expected during an open casket viewing? It is not an exact science, but that is when the jury comes into the picture.

I was a consultant in a case where during the viewing there was a strong odor coming from the casket. The family informed the mortuary staff and they used deodorizing sprays to spray the room and later opened the windows for fresh air. In the matter the mortuary staff indicated that they did not want to stop the viewing, in fear of delaying the funeral, which was planned one hour away. Fortunately for the mortuary, the exaggerated details from the plaintiffs were inconsistent that later decreased the damages. Nevertheless, did the mortuary violate their duty of care? Would it been wise to delay the scheduled funeral to minimize the offensive odors?

There is a tremendous value to embalming a deceased for an open casket funeral service. It is also a unique technique that is mastered over a period of time to ensure there is no offensive odors are present. There are many situations that prevent one from having an open casket viewing such as end stage decomposition or charred from a fire, therefore these are closed casket funeral services. But an embalmer must work hard to make that final wish for the family possible and reducing the chance of having embarrassing odors offending those present.

Here in California I consulted on a matter where the family planned and scheduled a cremation for an infant. There was to be now visitation, or service, but cremation involving the cremated remains to be placed in a selected urn and returned to the family. On the hour of the cremation the family arrives and learns that the process has started without their wish to dress and witness the cremation. Was there enough documentation to indicate their plans? Did the funeral director breach the contract or violate her duty of care?

When dealing with a legal matter that involves embalming failure or service complications, you must look at several essentials that will result in the best results. I have had the opportunity to work with the plaintiffs and the defendants where the facts where hidden in the embalming report, very vaguely noted in the funeral contract.

Like any other business profession, embalming has its challenges that require experience and additional knowledge. True professionalism of the funeral director and embalmer is in the heart. To state that one is a professional, is not so much of what does, but rather the quality, or lack thereof, which one brings to the assigned task.

ABOUT THE AUTHOR: Shun Newbern, MS
Shun Newbern, CFSP has over 20 years of funeral service experience, embalming in excess of 12,000 bodies and is the founder of Shun Newbern & Associates, a national speaking and consulting service on funeral service, cremation and cemetery matters. As a funeral director and embalmer, he assists in supervising a large staff of embalmers of a high volume location. He has written a series of articles on embalming, funeral ethics and prep room management in the Funeral Home and Cemetery News, ICCFA , The Director, Morticians Journal, Mortuary Management and The Scope. Because of his professionalism and attention to detail, this is the consultant or funeral expert that you want to support your team in a funeral service matter.

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While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.
For specific technical or legal advice on the information provided and related topics, please contact the author.

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