The Texas Court of Appeals Eastland decision in the case of Nelson v. SCI Funeral Services, Inc., 2016 WL 368437 (January 29, 2016) dealt with a novel issue of law related to the duty of a funeral home to an adult child of a decedent who had no contractual relationship with the funeral home in connection with the funeral services provided for the mother.

  According to the facts stated in the opinion, Nelson’s mother died unexpectedly in October 2007. At the time of her death, she had two children, Nelson, an adult, and a minor child. The mother’s adult siblings were aware that Nelson resided in Arizona, but were unable to locate or contact him. The mother’s adult siblings assumed the obligation to dispose of her remains and they contracted with the funeral home to have her remains cremated and subsequently scattered in a local cemetery less than two days after her death. The siblings requested the funeral home to try to contact Nelson, but the funeral home was unsuccessful.

  Nelson subsequently filed the lawsuit against the funeral home claiming the funeral home violated the Texas law dealing with disposition of remains by acting without his participation. No one disputed that Nelson clearly had priority under the law over the mother’s siblings.

  Nelson sought mental anguish damages under several theories of liability premised upon the funeral home’s alleged violation of the applicable Texas law. Specifically, he asserted causes of action based upon negligence per se, negligent breach of a special relationship, and negligent mishandling of a corpse. He also asserted a claim for gross negligence.

  The funeral home moved for summary judgment. The funeral home’s first argument was there was no evidence of a contract relationship or special relationship between Nelson and the funeral home. The second argument was that under general Texas law Nelson could not recover for mental anguish damages on the basis of the alleged facts. Accordingly the funeral home argued that as a matter of Texas law Nelson could not recover under any of his claims. The lower court agreed and held in the funeral home’s favor.

  The lower court’s decision was appealed. The Appeals Court stated in its analysis that it would consider the no evidence of a special relationship claim first. The funeral home had relied primarily on a another Texas case against an organ donor entity denying a claim by relatives of a deceased person whose eyes had been removed without consent on the basis the special relationship allowing mental anguish claims involving a human remains required there be a contractual relationship.

  The Appeals Court reviewed the various applicable cases and confirmed that absent a special relationship, Texas law did not generally allow claims for mental anguish. It noted that one area for special relationships was a limited number of contracts dealing with preparing a corpse for burial. The issue therefore was did Nelson’s claim fall within this special category even when there was no actual contract between the funeral home and him.

  The Appeals Court concluded there was and reversed and remanded the case back to the lower court for the following reasons:

1.      Under Texas common law the next of kin have the right to direct the burial (a quasi-property right) and accordingly can sue for mental anguish damages when acts are performed on the remains without their consent;

2.      Nelson clearly was the next of kin and in addition to the common law right he had rights created by the Texas statutory law; and

3.      On that basis the Appeals Court held that the funeral home owed Nelson a duty because of the special relationship and it was not necessary there be a contractual relationship between them.

  While this case is based on the Appeal Courts analysis of Texas law, it does serve as a warning to be extra careful when there is a family member with priority that has not been consulted. This article is for the information of subscribers and does not constitute legal advice about this subject. All subscribers should accordingly consult with their own attorney to make sure they are in compliance with the laws in their state.