A case recently filed with the Brooklyn Federal Court attracted some media attention a few weeks ago. Two sisters sued a New Jersey cemetery for $25 million after learning that their mother had been buried in a different grave site than the one they had been visiting since her death in 1990.

Last year, the sisters complained to the cemetery that their mother’s grave was not being kept up. Apparently, the plot came with a small plaque with their mother’s name, but at some point, somehow, the plaque had been removed. For reasons not explained in the media reports, the cemetery then discovered that the plot where the sisters thought their mother was buried was actually occupied by a man, and that their mother may have been buried in another plot (which, incidentally, also did not have a name plaque).

The key word here is may: the cemetery was prepared to have that plot excavated to allow the sisters and the funeral director to visually inspect the coffin to verify that it was the mother’s coffin. Yet before so doing, the cemetery wanted the sisters to sign a release the effect of which was to release the cemetery from any claims which they may have “arising out of the appearance of the human remains.”

Perhaps it was the indignity of having to sign such a document that was the nail in the proverbial coffin for the sisters. As part of their lawsuit, the sisters pled that the cemetery’s error caused them to have “visited the wrong gravesite, sought comfort from the wrong grave, laid flowers on the wrong grave, (and) prayed and had confidential conversations at the wrong grave.” (Lucky for the sisters it’s unlikely their confidences will ever be revealed.)

No doubt they also claim that they suffered emotional distress as a result of the cemetery’s alleged negligence. If this case were to be heard in Canada, before the sisters could recover damages, they would have to show that they suffered a serious and prolonged trauma or illness which, as expressed by the Supreme Court of Canada in Mustapha v. Culligan of Canada Ltd. [2008] 2 SCR 114 “rises above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept.”

Would the sisters meet this test?  Although seemingly a stretch, it’s not impossible: after all, Mr. Mustapha was found to have suffered damages after seeing a fly in his water.* Damages of $25 million is harder to conceive of however…perhaps it’s not just the cemetery who’s lost the plot…

Cheers,

Angelique

*The SCC ultimately rejected Mr. Mustapha’s claim for damages on the grounds they were not reasonably foreseeable.