Shipley v. City of New York, 2010 N.Y. App. Div. LEXIS 6880 (2nd Dept. 2010)

Appellate Division Sustains Cause Of Action Against New York City Medical Examiner For Violation Of The Right Of Sepulcher

The Court sustained a cause of action by the parents of Jesse Shipley based on the medical examiner’s negligent handling of the remains of Jesse Shipley, who was killed in an auto accident. The family granted permission for an autopsy and after it was conducted, a wake, funeral and burial were held. The Medical Examiner’s office had retained Jesse’s brain for further analysis without disclosing that to the family.

In a bizarre coincidence, Jesse’s former classmates, who were in a forensic science class, went on a field trip to the Medical Examiner’s office. One of them saw a cabinet with various human organs in specimen jars and one of them held a human brain with the label Jesse Shipley. This evoked a strong emotional reaction among his former classmates who told the family, which led to their lawsuit for emotional distress due to the mishandling of Jesse’s remains. Subsequently, Jesse’s remaining body parts were returned. The family argued that Jesse’s brain was improperly on display without consent, and that withholding the brain required a second funeral.

The Appellate Division held that although the Medical Examiner’s office had the right to conduct the autopsy and perform further testing of Jesse’s brain, any claim by plaintiffs to the contrary was barred because defendants were immune due to discretionary governmental action. The Court also held that New York recognizes a common law right of sepulcher giving the next of kin the right to return of all the remains of a family member. Any unlawful interference with that right is actionable. Here, the Court concluded that the City faced potential liability for not notifying the family of the retention of Jesse’s brain, which necessitated a second funeral after the return of his remains.