Shirley Allen v. Hamden Plains Cemetery Association, Inc. et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANT STATUTORY COMMITTEE FOR HAMDEN PLAINS CEMETERY ASSOCIATION'S MOTION FOR SUMMARY JUDGMENT (No. 131)

Shirley Allen (“Allen”) has suffered a terrible indignity.   Both her late father, Charles Roberts (“Charles”), and her late husband, Willie Allen, Sr. (“Willie”), have been buried in the Hamden Plains Cemetery (“Cemetery”), but the exact locations of their graves cannot now be determined.   Allen has consequently brought this action for damages against a number of defendants said to be responsible for the situation.

The narrow question presented by the Motion For Summary Judgment now before the Court is whether, under the governing statute, the defendant filing the Motion, the Statutory Committee for Hamden Plains Cemetery Association (“Statutory Committee”), has the duty of care alleged in the Amended Complaint.   For the reasons set forth below, the Statutory Committee does not have a duty of this description.

The evidence submitted by the parties establishes that Charles died on April 27, 2004, and Willie died on January 10, 2008.   Both men were buried in the Cemetery, but due to what appears to be serious mismanagement, their headstones were never placed, and the exact location of their graves cannot be determined.

At the time of the respective burials, the Cemetery was controlled by the named defendant, Hamden Plains Cemetery Association, Inc. (“Association”).  On May 5, 2008, however, pursuant to Conn. Gen.Stat. § 19a–302, the Hamden Legislative Council passed a resolution authorizing the Statutory Committee to take over the care of the Cemetery's perpetual care fund from the Association.   The Statutory Committee continues to exercise its statutory powers today.

Allen commenced this action by service of process on September 8, 2009.   Her Amended Complaint contains four counts against the Statutory Committee.   Count Seven alleges breach of contract concerning the burial of Charles.   Count Eight alleges breach of Contract concerning the burial of Willie.   Count Fifteen alleges negligence concerning the burial of Charles.   Count Sixteen alleges negligence concerning the burial of Willie.

The Statutory Committee filed the Motion For Summary Judgment now before the Court on October 16, 2012.   The Motion contends that Counts Seven and Eight “fail as a matter of law” and that Counts Fifteen and Sixteen also “fail as a matter of law because the defendant did not owe the plaintiff a legal duty.”   The Motion was argued on July 15, 2013.

Allen conceded at the hearing that her breach of contract claims fail as a matter of law.   The Motion is granted as to Counts Seven and Eight without opposition.

Counts Fifteen and Sixteen must now be considered.

Count Fifteen alleges that, “When the Statutory Committee assumed control [of the Cemetery], it assumed the Association's duty to Plaintiff as a relative of [Charles] to provide, by itself and through its agents, burial services for [Charles] with reasonable skill and diligence, and to supervise the conduct of [the sexton of the Cemetery], an employee and/or agent of the Association.”   It then alleges that the Statutory Committee breached this duty.   Count Sixteen makes identical allegations with respect to Willie.

The governing statutes must now be considered.

Conn. Gen.Stat. § 19a–301(a) provides, in relevant part, that,

Any cemetery association ․ may ․ set aside the surplus funds of such association as a permanent fund.   Such fund shall be invested in accordance with the provision of the statutes concerning the investment of trust funds.   Such fund, together with any donation received by an ecclesiastical society or cemetery association pursuant to section 19a–303, shall be under the control, management and supervision of a committee ․ elected by such association or society.   The treasurer of such society or association ․ shall give bond, with surety, to the satisfaction of such committee, for the faithful discharge of his duties.   He shall expend the income from such fund or donation for the management, care and maintenance of [the] cemetery ․

Conn. Gen.Stat. § 19a–302 provides, in relevant part, that,

If at any time such association fails to comply with the provisions of section 19a–301, the selectmen of the town in which such cemetery is located shall take over the care of such fund ․ The selectmen may appoint a cemetery committee ․ Such committee shall have all of the powers and duties of a committee established as provided in section 19a–301.

On May 5, 2008, pursuant to § 19a–302, the Hamden Legislative Council passed a resolution forming the Statutory Committee.   The express purpose of the Statutory Committee was “to take over the care of the Hamden Plains Cemetery, Inc. fund.”   The Statutory Committee members were given “all the powers and duties of a committee established as provided in § 19a–301.”

The evidence submitted by the parties establishes that the Statutory Committee has not itself assumed control and supervision over the day-to-day operations of the Cemetery.   Rather, it has hired a management company to perform these tasks.   Neither the management company nor any individual members and officers of the Statutory Committee are parties to this action.   Resolution of the Motion now before the Court requires a careful analysis of the statutory powers and duties of the Statutory Committee.   Those statutory powers and duties are strictly limited.   Pursuant to both § 19a–302 and the May 5, 2008 resolution of the Hamden Legislative Council, the Statutory Committee has “all the powers and duties of a committee established as provided in section 19a–301.”   A proper analysis of the Statutory Committee's powers and duties must consequently focus on § 19a–301.

The unambiguous language of § 19a–301(a), quoted above, makes it clear that the purpose of a cemetery association, including the Statutory Committee, is to manage “a perpetual fund.”   The fund —not the cemetery itself, but the fund —is under the control, management, and supervision of a committee elected by the association.   The treasurer of the association—not the association itself but the treasurer —is charged with “expend[ing] the income from such fund for the management, care and maintenance of [the] cemetery.”   The treasurer must give a surety bond for the faithful discharge of that duty.

It is clear from the provisions of § 19a–301(a) that the Statutory Committee itself has no legal responsibility for “the management, care, and maintenance” of the Cemetery.   It is the Statutory Committee's treasurer —not a party to this action—who must expend the income from the Cemetery's fund for that purpose.   The evidence submitted by the parties establishes that a management company has been hired to perform the actual management, care, and maintenance of the Cemetery.   The management company is not a party to this action.

The language of § 19a–301(a) contemplates that the treasurer of a cemetery association may, in some cases, incur liability by negligently expending the cemetery fund's income for the management, care, and maintenance of the cemetery.   The fact that the treasurer must post a surety bond plainly suggests that such liability on his part may appropriately be found in some cases.   But the treasurer of the Statutory Committee is not a party to this action, and there is, in any event, no allegation that the cemetery's funds have been negligently spent.

A careful review of the relevant statutory provisions, discussed above, establishes that the Statutory Committee does not have the duty alleged in Counts Fifteen and Sixteen of the Amended Complaint.   Under these circumstances, Allen cannot recover under these counts.

The Statutory Committee's Motion For Summary Judgment is granted as to Counts Seven, Eight, Fifteen and Sixteen of the Amended Complaint.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.