Eleanor M. Reich v. Spencer Enterprises, Inc. et al. (2011)

MEMORANDUM OF DECISION

This case was tried to the court over four days, concluding on April 13, 2011.   Although originally brought in many, many counts against more defendants than were present at trial, the case was tried against two defendants on a complaint brought in eight counts, four causes of action against each defendant.   The defendants at trial were Gilbert Spencer, general manager of the funeral home in Glastonbury in 2001, a consultant to the funeral home in 2005, and retired at the time of trial.   The other defendant is SCI Connecticut Funeral Services, Inc., the owner of the funeral home at all relevant times.

The plaintiff is Eleanor Reich, who lost her husband of 38 years in October of 2001.   Through meetings with the defendant Mr. Spencer the plaintiff engaged the defendant funeral home to arrange for the cremation of William J. Reich, the deceased husband of plaintiff Mrs. Reich, as well as funeral services, providing an urn for the cremated remains of Mr. Reich as well as other services and items.   The court finds that the remains of Mr. Reich were received by the defendants in two boxes, labeled either “1 of 2” or “2 of 2,” but that only one of the cardboard boxes was placed into the urn selected by Mrs. Reich.   The urn was delivered to Mrs. Reich within a reasonable time after the cremation by Mr. Spencer, but the other box, clearly labeled as cremated remains and clearly labeled as the remains of Mr. Reich, were neither put into the urn nor delivered to Mrs. Reich.   Instead, they were placed and permitted to remain on a shelf at the funeral home where cremated remains (and stationery) were stored.   The funeral home was handling about 15 to 20 cremations per year in 2001, and there was simply no reason other than negligence why the funeral home failed to perform what was arguably the most important part of its undertaking, the delivery of the entire remains of the plaintiff's deceased husband.

The plaintiff was considerably saddened by her husband's passing, and grieved for at least a year.   The court accepts the testimony of the plaintiff and her daughters that plaintiff had resumed her life and was largely back to her former self in the second year after her husband's death, although to be sure she still missed her departed husband.

In November of 2005, slightly more than four years after plaintiff's receipt of what she had been entitled to believe were her husband's entire remains, and what the defendants had represented by their actions to be her husband's entire remains.   The funeral home (acting through the present manager, Mr. Spencer at that time having become a consultant) sent a letter to plaintiff informing her in, the court finds, a peremptory manner, that the funeral home “has been unable to complete the funeral arrangement” because a box of remains had “apparently been overlooked,” and if plaintiff didn't pick them up in the next 4 or 5 weeks, they would be placed in a mausoleum at plaintiff's expense.   The off-hand apology also contained in the letter failed to ameliorate the shock which was reasonably foreseeable.

From the receipt of the letter and the discovery that there were an additional 2 pounds of remains, to the present day, plaintiff has undergone great emotional distress, requiring psychiatric care, and is still seeing a psychiatrist.   Both defendants have been guilty of conduct which they each should have realized involved an unreasonable risk of causing distress, which distress might result in illness or bodily harm.   Of course the defendant SCI acted through its employees, for whose conduct it is liable.   The court also finds that the plaintiff's distress was reasonable in light of the defendant's conduct.   See, Larobina v. McDonald, 274 Conn. 394, 410.

Plaintiff has failed to prove her allegations of recklessness against either defendant, as pleaded in counts 4 and 6.

Defendant has claimed that the negligence counts, counts 1 and three, are legally insufficient because, under the 1925 case of Bushnell v. Bushnell, 103 Conn. 583, 594, and the Superior Court case of Fisher v. Yale University, Feb. 8, 2006, no recovery for emotional distress can be had in negligence unless pleaded specifically as a claim for negligent infliction of emotional distress, as opposed to negligence.   The court disagrees, opining that Bushnell, supra, has little vitality in light of Montinieri v. Southern New England Telephone Company, 175 Conn. 337, which after all recognized just such a claim as attacked by defendant here.   While the court would have surely stricken the negligence counts if presented with a timely motion to strike, it would have done so on the grounds that the counts were duplicative of the negligent infliction counts, not because of legal insufficiency.   The court intends to enter judgment on both the negligence and negligent infliction of emotional distress counts in favor of plaintiff (subject to Statute of Limitations issues on counts 1 and 13, the counts against Mr. Spencer), but frankly is at a loss to see what difference it makes.

In addition to denying the allegations of the plaintiff the defendant has interposed special defenses of Statutes of Limitations.   Suit was brought in 2007, within two years of the 2005 letter, but far more than three years after the events of 2001.   One of the essential obligations undertaken by defendants was seeing that Mrs. Reich received the cremated remains of her husband, not some of them, not most of them, but the entire remains.   Therefore, whether analyzed as a continuing course of conduct or as a 2005 event involving the late disclosure of additional remains with a remarkably insensitive letter, the court finds that the Statute of Limitations does not apply to the Negligence and Negligent infliction counts direct against defendant SCI. The situation is more complex and nuanced with respect to those counts as directed to the individual defendant, Mr. Spencer.   Had Mr. Spencer still been the funeral home's director in the fall of 2005, there would be no issue of the Statute of Limitations, but at that time he was a consultant, and little evidence was presented to the court as to what that means.   Is it plaintiff's burden to show that Mr. Spencer maintained sufficient connection with the funeral home for him to have had the continuing duty the court finds to have existed for the corporate defendant, or is it defendant's burden, having pleaded the Statute of Limitations, to show that Mr. Spencer's status as a “consultant” is sufficient to afford him the protection of the Statute of Limitations by reason of whatever attenuation his new status provided?   While a close question, the court holds that plaintiff had the burden, and therefore a defendant's verdict will enter on count 1. Similarly, the claims of negligent misrepresentation must fail because the only possible misrepresentation was that the remains delivered to plaintiff in 2001 were her late husband's entire remains, and suit could have never been commenced on that claim in 2004, since plaintiff could not possibly have known that she did not have all of her husband's remains.   As harsh as this result may seem, this is the court's understanding of the purpose of a Statute of Repose, and so judgment will enter for defendant on counts 10 and 12.

The court deems it unnecessary to detail the significant emotional distress suffered by plaintiff because of the actions of the defendants, although, of course judgment will enter only against one defendant.   The court finds that fair, just and reasonable compensation is as follows:  $90,000, composed of past economic loss of $7,000, future economic loss of $3,000, past non-economic loss of $75,000, and because the court is convinced (and hopes) that Mrs. Reich will continue to improve and do well emotionally in the future, $5,000. future non-economic loss, which is essentially a short-term future award.

Judgment will enter, for the reasons set forth above, for the plaintiff Eleanor Reich as against the defendant SCI Connecticut Funeral Services Inc. on counts 3 and 15, while judgment will enter for the defendants on counts 1, 4, 6, 10, 12, and 13.   Costs are awarded to the plaintiff.

KOLETSKY, JTR

Koletsky, Joseph Q., J.T.R.