HARLAN (GREGORY V.), ET AL. VS. G. C. WILLIAMS FUNERAL HOME, INC. , ET AL.Annotate this Case
RENDERED: AUGUST 8, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
GREGORY V. HARLAN, JR., AND
DORIS J. HARLAN
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE
ACTION NO. 05-CI-006712
G.C. WILLIAMS FUNERAL HOME, INC.,
AND GREEN MEADOWS CEMETERY,
** ** ** ** **
BEFORE: LAMBERT AND MOORE, JUDGES; BUCKINGHAM,1 SENIOR
BUCKINGHAM, SENIOR JUDGE: Gregory V. Harlan, Jr., and Doris J. Harlan
appeal from a summary judgment granted by the Jefferson Circuit Court to G.C.
Williams Funeral Home, Inc., and Green Meadows Cemetery, LLC. We affirm.
Senior Judge David C. Buckingham sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
On July 31, 2004, Andre Lamont Cowan, the son of Doris J. Harlan
and the stepson of Gregory V. Harlan, Jr., was shot and killed. Mrs. Harlan made
arrangements with G.C. Williams Funeral Home for his funeral and burial. Their
contract contained the following provision, entitled “Arrangements and
Supervision,” under which the funeral home agreed to provide
the services of funeral director, other staff and use of
equipment of funeral firm in all details related to
arrangements, conduct and direction of the funeral and/or
disposition of remains.
The contract also provided that $575 would be paid for Cowan’s grave.
Arrangements were made for Cowan to be buried at Green Meadows Cemetery,
although Green Meadows was neither named in the contract nor a party to it.
G.C. Williams provided for a security officer to be present at
the funeral home during the service for Cowan. Jasper Crenshaw, the vice
president of G.C. Williams, testified in his deposition that this was a precaution
normally taken when the decedent was a young African-American male who had
died from “a gunshot or something like that.” Crenshaw explained that the funeral
home or the city police provided such security personnel because several years
earlier a gun had been fired during a funeral service for a young African-American
who had been killed by a gunshot. No arrangements were made for a security
officer to be present at the Green Meadows grave site, however.
After the service at the funeral home, Cowan’s casket was transported
to the cemetery, where a short ceremony was held in a shelter. The funeral
attendees and the employees of G. C. Williams then left the cemetery, leaving
Cowan’s casket with Green Meadows. The casket was moved from the shelter and
placed in the vault (a large concrete receptacle) to await burial by employees of
Green Meadows. The casket had no lock and was not sealed.
Several other funerals were being held that day at the cemetery, and
Cowan’s casket was left unattended while other caskets were being interred.
During this period of time, several unidentified individuals opened the coffin and
placed various items in the casket, including what appears to be a blindfold or
bandanna on Cowan’s head. They then took photographs of themselves with
Cowan’s body. These photographs were delivered to Mr. Harlan.
The Harlans filed a civil complaint in the Jefferson Circuit Court
against G.C. Williams and Green Meadows. The claims included negligence and
gross negligence, negligent interference with remains and mishandling of a corpse,
intentional infliction of emotional distress, and breach of contract.2
After some discovery was taken, the funeral home and the cemetery
filed motions for summary judgment. The circuit court granted the motions in an
opinion and order entered on May 24, 2007. This appeal by the Harlans followed.
In reviewing a grant of summary judgment, our inquiry focuses
on whether the trial court correctly found that there was no genuine issue as to any
material fact and that the moving party was entitled to judgment as a matter of law.
Kentucky Rules of Civil Procedure (CR) 56.03. “[T]he proper function of
The Harlans brought additional causes of action in their complaint, but they abandoned those
before the summary judgment proceedings.
summary judgment is to terminate litigation when, as a matter of law, it appears
that it would be impossible for the respondent to produce evidence at the trial
warranting a judgment in his favor.” Steelvest v. Scansteel Service Center, Inc.,
807 S.W.2d 476, 480 (Ky. 1991).
The Harlans’ first argument is that the trial court erred in granting
summary judgment on their negligence claims. In Lewis v. B & R Corporation, 56
S.W.3d 432 (Ky.App. 2001), this court stated as follows:
In order to state a cause of action based on negligence, a
plaintiff must establish a duty on the defendant, a breach
of duty, and a causal connection between the breach of
the duty and an injury suffered by the plaintiff. The
causal connection or proximate cause component
traditionally was composed of two elements: cause-infact and legal or consequential causation. Cause-in-fact
involves the factual change of events leading to the
injury; whereas, consequential causation concerns the
concepts of foreseeability and the public policy
consideration on limiting the scope of responsibility for
damages. In Kentucky, the cause-in-fact component has
been redefined as a “substantial factor” element as
expressed in Restatement (Second) of Torts 431. The
scope of duty also includes a foreseeability component
involving whether the risk of injury was reasonably
Id. at 436-37. Further, in Ohio Casualty Insurance Company v. Commonwealth,
Department of Highways, 479 S.W.2d 603 (Ky. 1972), the court held that “[i]n
Kentucky we always have determined proximate cause on the basis of whether the
injury is the natural and probable consequence of the negligent act, which test
involves the element of foreseeability.” Id. at 605.
The circuit court found that Mrs. Harlan’s contract with G.C.
Williams did not create a duty requiring G.C. Williams to remain at the burial site
after the body had been transported to the cemetery. The court also observed that
Kentucky courts have determined that in analyzing legal duties in cases such as
this, “[t]he major issue is the question of foreseeability.” Fryman v. Harrison, 896
S.W.2d 908, 909 (Ky. 1995). The court found no evidence in the record that either
G.C. Williams or Green Meadows could have foreseen the actions of the
individuals who opened the casket at the cemetery and photographed themselves
with the body. The court further stated that there is no duty to protect another from
the criminal acts of a third party.
The Harlans contend that the contract did create a duty: specifically,
the provision in which the funeral home had agreed to arrange and supervise “all
details related to arrangements, conduct and direction of the funeral and/or
disposition of the remains.” The Harlans maintain that this duty to conduct and
direct the disposition of the remains at the cemetery was breached when the
employees of G.C. Williams left the cemetery after the service, rather than
remaining until the casket had been safely interred. Similarly, they argue, Green
Meadows negligently left the casket unattended long enough for several
individuals to enter the cemetery, open the casket, and take photographs. They
contend that an issue of fact exists as to whether the appellees had breached their
duties to supervise and attend to all the details relating to the conduct and direction
of the burial or disposition of the remains.
We agree with the circuit court’s determination that the duty of the
appellees, both in the exercise of ordinary care and as created by the contract, did
not extend to anticipating the bizarre events that occurred and hence to providing
an employee to guard the casket until it was interred. It was reasonable on the part
of the appellees to assume that the casket could be left unattended in the vault to
await burial. The harm that resulted from leaving the casket unattended was not
The Harlans argue that the fact that G.C. Williams provided a security
guard at the funeral home shows that the appellees were aware that criminal
activity was likely to occur at the funeral of a young African-American who had
died violently. But, providing security at a crowded funeral home where an
altercation could break out among visitors is materially different from providing
continuous security for a casket contained in a vault awaiting burial.
The Harlans further argue that the appellees breached duties created
by statute, specifically Kentucky Revised Statutes (KRS) 316.010 and KRS
381.697, and are liable for such actions.
KRS 446.070 provides:
A person injured by the violation of any statute may
recover from the offender such damages as he sustained
by reason of the violation, although a penalty or
forfeiture is imposed for such violation.
In Hargis v. Baize, 168 S.W.3d 36 (Ky. 2005), the Kentucky Supreme
Court held that
The statute creates a private right of action in a person
damaged by another person's violation of any statute that
is penal in nature and provides no civil remedy, if the
person damaged is within the class of persons the statute
intended to be protected.
Id. at 40. In Alderman v. Bradley, 957 S.W.2d 264 (Ky.App. 1997),
this court held that
In order for a violation to become negligence per se, the
plaintiff must be a member of the class of persons
intended to be protected by the regulation, and the injury
suffered must be an event which the regulation was
designed to prevent. Only when both requirements are
affirmatively demonstrated is negligence per se
established with the applicable regulation or statute
defining the relevant standard of care.
Id. at 267.
KRS 316.010 (8) provides as follows:
“Funeral director” means a person who, for profit,
engages in or represents himself or herself as engaged in
the supervision, direction, and arrangement of funeral
services, transportation, burials, and disposals of dead
KRS 316.010(8) merely defines the term “funeral director.” It does not create or
define any duties or responsibilities for funeral directors. Thus, the appellees could
not have violated any duties in the statute since it contained no duties.
The other statutory provision relied upon by the Harlans, KRS
381.697(1), states as follows:
Every cemetery in Kentucky except private family
cemeteries shall be maintained by its legal owner or
owners, without respect to the individual owners of burial
plots in the cemetery, in such a manner so as to keep the
burial grounds or cemetery free of growth of weeds, free
from accumulated debris, displaced tombstones, or other
signs and indication of vandalism or gross neglect.
The Harlans argue that this provision imposes a statutory duty on Green Meadows
to anticipate the type of injury that occurred here.
However, the statute further provides as follows:
The owner or owners of public or private burial grounds,
regardless of size or number of graves, shall protect the
burial grounds from desecration or destruction as
stipulated in KRS 525.115(1)(a), (b), or (c) or from being
used for dumping grounds, building sites, or any other
use which may result in the burial grounds being
damaged or destroyed. The provisions of this
subsection shall not apply to the owner or owners of
public or private burial grounds when the public or
private burial grounds have been desecrated,
damaged, or destroyed as the result of a crime by
another as defined by KRS 500.080.
KRS 381.697(2) (emphasis supplied.) The statute specifically exempts the owners
of burial grounds from liability when the grounds are damaged as the result of a
crime committed by another.
The appellants’ second argument is that the circuit court erred in
ruling that in Kentucky there is no duty to protect another from the criminal acts of
a third party. This is an accurate statement of the law, insofar as there is no duty to
protect against unforeseeable criminal acts of third parties.
In Kentucky, “[t]he rule is that every person owes a duty
to every other person to exercise ordinary care in his
activities to prevent foreseeable injury.” Grayson
Fraternal Order of Eagles, Aerie No. 3738, Inc. v.
Claywell, Ky., 736 S.W.2d 328 (1987). (Emphasis
added). In addressing questions of proximate cause,
recent cases apply the general principles of foreseeability
in those cases involving intervening or superseding
cause. See generally Montgomery Elevator Co. v.
McCullough, Ky., 676 S.W.2d 776 (1984). Even an
intervening criminal act does not relieve one for liability
for his or her negligent acts or omissions, where the
criminal act is a reasonably foreseeable consequence of
the defendant's negligent act. See, e.g., Wheeler v.
Andrew Jergens Company, Ky., 696 S.W.2d 326 (1985).
Waldon v. Housing Authority of Paducah, 854 S.W.2d 777, 778-79 (Ky.App.
In James v. Wilson, 95 S.W.3d 875 (Ky.App. 2002), one the cases
cited by the circuit court, a school shooter stole a gun that was kept unloaded in a
storage case in a cabinet behind several other items. He also broke into a storage
shed and stole ammunition. The court held that the owner of the gun “was under
no duty to anticipate that [the shooter] would ransack his shed, steal his gun and
ammunition, and use them in the intentional shootings of other students.” Id. at
By contrast, in the Waldon case, the court observed that while a
landlord is “not a guarantor of his tenants’ safety,” he may be liable to a tenant for
the criminal acts of third persons “if the landlord fails to take reasonable steps to
avoid injury from reasonably foreseeable criminal acts.” Id. at 779 (citations
omitted). In Waldon, the Housing Authority of Paducah was aware that an
individual named Williams had made repeated threats to kill a tenant, Smith, was
aware that Williams was residing in the housing complex without permission, and
was aware that crimes frequently occurred at the complex. The housing authority
failed to remove Williams from the complex and failed to provide any security
guards. Williams subsequently killed Smith. The court held that the housing
authority’s inaction was sufficient to create a jury question on the issue of
proximate cause of Smith's death such as to preclude summary judgment for the
housing authority. Id.
Analyzing the factual circumstances of this case in the context of
James and Waldon, we conclude that the circuit court correctly held as a matter of
law that the criminal conduct was unforeseeable. The appellees were never
informed of any threats to mistreat Cowan’s body, and there is no evidence that a
similar incident had ever occurred at the cemetery.
The appellants’ reliance on Degener v. Hall Contracting Corp., 27
S.W.3d 775 (Ky. 2000), is also misplaced. Under the principles of Degener, if
there was liability on the part of G.C. Williams and Green Meadows, i.e., if the
criminal acts in this case had been reasonably foreseeable, they would be entitled
to complete indemnity against the anonymous perpetrators of those acts. Id. at
781. The Degener case did not address the issues present in this case, however.
The appellants’ third argument is that the court erred in dismissing
their claim for desecration of a dead body and/or negligent interference with
remains and mishandling of a corpse. The circuit court rejected these claims by
stating that this cause of action is exclusively one for mental distress and that
damages may not be recovered for shock or mental anguish unaccompanied by
physical contact or injury. See Heatrick v. Willis, 439 S.W.2d 942, 943 (Ky.
1979). The court noted that nothing in the record supports a finding that the
Harlans suffered any physical contact or injury.
The Harlans argue that there is an exception in Kentucky that allows
for the recovery of damages for mental anguish for desecration, interference with,
or mishandling of a corpse, even when unaccompanied by physical contact or
injury. In R.B. Tyler Co. v. Kinser, 346 S.W.2d 306 (Ky. 1961), the court held that
It is the law of this jurisdiction that next of kin have a
right to recover damages for mental anguish for
“unwarranted interference with the grave of a deceased
person” as well as for an act which affected the body
interred therein if either act was done maliciously or
wantonly or by gross negligence.
Id. at 308.
The Harlans have not cited any authority that would allow such an
action to be brought against a third party who was not the perpetrator. Thus, we
conclude that this type recovery may be made solely against the individual(s) who
perpetrated the act. We agree with the appellees that this claim fails because there
was no evidence that either appellee acted with the requisite intent or actually
mishandled or interfered with the corpse.
The appellants’ final argument concerns their claim for breach of
contract. They contend that they are third-party beneficiaries of a contract with
Green Meadows Cemetery and consequently, although Green Meadows did not
sign the written agreement that Mrs. Harlan made with G.C. Williams, there was
an implied contract between it and her to handle the remains of her son
appropriately and to assure a proper interment. There is no evidence to support a
claim of breach of contract, however, because the appellees provided everything
outlined in the contract. The contract did not require them to anticipate an
intervening, unforeseeable criminal act and to provide precautions against it.
The summary judgment of the Jefferson Circuit Court is affirmed.
LAMBERT, JUDGE, CONCURS.
MOORE, JUDGE, CONCURS IN RESULT ONLY.
BRIEFS FOR APPELLANT
A. Andrew Draut
BRIEF FOR APPELLEE G.C.
WILLIAMS FUNERAL HOME:
Jennifer L Frederick
BRIEF FOR APPELLEE GREEN
MEADOWS CEMETERY, LLC:
Robert E. Stopher
Robert D. Bobrow