For the family of 66-year-old Erwin Jordan, a Holland, Mich., area resident who died of heart disease on Dec. 20, 2005, a usually festive holiday season suddenly became gloomy. What followed would transform their sorrow into a nightmare.

Family members asked the Notier-Verlee-Langland Funeral Home (Notier) to handle a cremation. The body was transported to Holland Hospital for organ donation and later moved back to Notier, where it was placed in a refrigerated room.

On Dec. 22, Notier, still awaiting the cremation authorization but needing room in its refrigeration unit, moved Jordan's remains to a 50-square-foot garage on its premises where the temperatures were below 40 degrees. Notier used the garage to hold its garbage dumpster and recycling bins, and for tool storage.

The remains were inside a body bag placed in a cremation container, which is a wooden tray with a cardboard cover. The words "JORDAN" and "HEAD" and Notier's name were written on the container, which sat on a gurney.

Notier had a contract with Arrowaste, a Zeeland, Mich.-based hauler, for the collection of solid waste and recyclables. Among other provisions, the agreement excluded hazardous, toxic or infectious substances, placed liability for excluded materials with Notier, and called for Notier to indemnify Arrowaste for contract-related claims or lawsuits.

In early January 2006, an Arrowaste employee who regularly picked up Notier's recyclables removed the cremation container with Jordan's remains from the garage and dumped it into the back of his truck. The employee later explained that he thought the container was supposed to be taken because it was located next to the recycling bins.

Jordan's remains ended up in a local landfill. Aided by state police cadaver dogs, the landfill was searched, but, at the family's request, the efforts were soon halted. The remains have never been found.

Members of the family filed suit in Ottawa County Circuit Court against Arrowaste and Notier, alleging emotional distress, negligence and breach of contract. The trial judge issued an interim order allowing the plaintiffs to proceed against Arrowaste based on the hauler's duty to use care when removing items from Notier's premises so as to avoid taking human remains. Proceedings in the trial court then went on hold while Arrowaste appealed the ruling.

The Michigan Court of Appeals ordered the case remanded to the circuit court for the entry of a judgment in favor of Arrowaste on the plaintiffs' negligence claim. "[O]nly by virtue of [its] contract with Notier [was] Arrowaste present in Notier's garage and removed the cremation container it believed to be waste," the appeals court found.

Under Michigan law, a plaintiff can sue for negligence based on a contract in which the plaintiff is not a party if the defendant created a new hazard not part of the original contract. Here, the appellate court found no risks besides what the contract already contemplated, and deemed it "not foreseeable, even at a funeral home, that a dead body awaiting burial or cremation would be stored in [a garage]."

Notier and Arrowaste must still resolve the cross-suits against each other, and the family is pursuing its case against the funeral home.

[Stanek v. Arrowaste, Inc., No. 277385, Mich.App. Nov. 25, 2008.]

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].