Grecia Ventura et al. v. LLC (2010)

MEMORANDUM OF DECISION

This action was brought by way of a summons and complaint filed September 8, 2009, and served upon the defendant on August 24, 2009.   A Default for Failure to Appear entered by Deputy Chief Clerk Haas on December 14, 2009, and notice of the same was mailed on December 15, 2009.   Thereafter, the defendant failed to appear and defend and a Hearing in Damages was conducted before this court on December 22, 2010, at which time all plaintiffs appeared and testified.   The two-count Complaint asserted a cause of action for intentional infliction of emotional distress (Count One) and negligent infliction of emotional distress (Count Two);  the plaintiffs proceeded at trial on Count Two.

The decedent, Fausto Ventura, died on August 23, 2006, and arrangements were made with the defendant funeral home on August 24, 2006, to take possession of the body, prepare it for a one-day viewing in Waterbury (the residence of the family), and thereafter to transport the body by airline to the decedent's ancestral birthplace in the Dominican Republic for viewing and burial there.   A total of six thousand eighteen dollars ($6,018) was paid to the defendant-one thousand one hundred sixty-eight dollars ($1,168) by plaintiff, Miguel Ventura, the decedent's son, on September 13, 2006 (Exhibit 4), and four thousand eight hundred fifty dollars ($4,850) by the plaintiff-widow, Grecia Reyes Ventura (Exhibits 3 and 5).   The Waterbury service was well-attended and conducted without incident.   The defendant's wrongdoing was discovered in the Dominican Republic.

The body was received by Customs in the Dominican Republic on August 29, 2006.   The widow, Juan Ventura (the now thirty (30) year old son, and two (2) daughters (present at trial) accompanied the body.   When, as was required, the casket was opened for the purpose of identification, a stench so foul it was worse than “anything I ever smelled in Baghdad where I served,” ¹ was emitted.   When the shroud was removed from the decedent's face, his visage was black and blue, his lips were swollen, and a stream of pooling blood came from the right side of the gentleman's mouth.   Dried blood discolored his shirt collar, the pillow on which his head lay, and the underside of the shroud.   Exhibits 7 and 8. The Health Department declared the body a “health hazard” and ordered it be buried within (4) hours (which it was), thereby preventing a viewing or service for the family's many friends and relatives in the Dominican Republic.

The defendant, on August 28, 2006-prior to the body's transport-executed an “Affidavit of Licensed Embalmer.”   Exhibit 6. The embalmer (Lillard R. Lewis, Sr., under License No. # 2191), acting under authority of the funeral home, and giving the same Waterbury, Connecticut, address as the funeral home, certified, inter alia, that “proper measures have been taken to render the body harmless in accordance with the Public Health Code of Connecticut relative to the preparation and burial of dead human bodies.”  Id. The death certificate bore both the signature of the embalmer and by a “Registrar” who, on August 28, 2006, attested to the facts both that the body had been embalmed and that “proper measures [had] been taken to render the body harmless.”   The body had clearly not been properly embalmed (if at all) and the Health Department's direction to bury the body within hours underscored the truth that it was in fact so potentially harmful to others as to require immediate burial.

To establish a claim of negligent infliction of emotional distress, the plaintiff must prove the following elements:  “(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress;  (2) the plaintiff's distress was foreseeable;  (3) the emotional distress was severe enough that it might result in illness or bodily harm;  and (4) the defendant's conduct was the cause of the plaintiff's distress.”  DeCorso v. Watchtower Bible & Tract Society of New York, Inc., 78 Conn.App. 865, 875 (2003), citing to Carrol v. Allstate Ins. Co., 262 Conn. 433, 444 (2003).

Three and one-half (3-1/2) years later, this proud family still grieves and that grief is heightened by the memory of the foul stench of their husband and father's body, the disturbingly altered condition of his face in death, the unsanitary and unhealthy condition of the casket in which he lay, and their having been deprived of the opportunity for a viewing and interment by family and friends in the land of his final resting place.

Having accepted the body for proper preparation, preservation, transmittal by flight, and burial, the defendant breached its duty to the family, which breach proximately caused Grecia, Juan, and Miguel Ventura the negligent infliction of emotion distress.

The following damages are awarded:

Grecia Ventura $54,850 2

Juan Ventura $51,168 ³

Miguel Ventura $50,000 ⁴

Judgment enters this date in favor of the plaintiffs as against the defendant in the total amount of one hundred fifty-six thousand and eighteen dollars ($156,018.00).

A copy of this decision is being sent this date to the Office of the Connecticut Attorney General and the Connecticut Department of Health for whatever action they may deem appropriate.

B.J. SHEEDY, J.

FOOTNOTES

FN1. Testimony of Juan Ventura on December 22, 2010..  FN1. Testimony of Juan Ventura on December 22, 2010.

FN2. $4,850 assigned to the defendant for funeral services and $50,000 for her emotional distress..  FN2. $4,850 assigned to the defendant for funeral services and $50,000 for her emotional distress.

FN3. $1,168 paid to the defendant for funeral costs and $50,000 for his emotional distress..  FN3. $1,168 paid to the defendant for funeral costs and $50,000 for his emotional distress.

FN4. Damages for his emotional distress..  FN4. Damages for his emotional distress.

Sheedy, Barbara J., J.