07/01/2010

FUNERAL PROCESSION LIABILITY

By T. Scott Gilligan OFDA General Counsel

Ohio, primarily through the efforts of OFDA and its Legislative Committee, lobbyist, Board and members, has adopted laws which provide several important liability protections for funeral homes.  One area where Ohio is in the forefront of protecting funeral homes is with regard to funeral processions.  Unlike many states where funeral processions have all but disappeared because of liability concerns, funeral processions continue to be offered in Ohio in large part because Ohio laws reduce liability for Ohio funeral homes that organize and supervise funeral processions. 

 

What are those liability risks?  In a case that went to the Florida Supreme Court, a funeral home was successfully sued for choosing a route for a funeral procession that went through a congested area.   The Court allowed a jury to determine if the funeral home was negligent for selecting the route when a participant in the funeral procession was involved in an accident.  In cases from other states, funeral homes have been sued by third parties for injuries suffered when participants in funeral processions negligently operated their automobiles.  There have also been cases in states where funeral homes have been sued because funeral processions proceeded through intersections against red lights and courts have found that no state or local laws allowed them to ignore red lights despite long standing customs.

 

Not only have funeral homes incurred liability over funeral processions, but also police departments and private escort companies have been sued.   The Chattanooga police department was held partially responsible for the accident when a police officer escorting a funeral procession left an intersection before the procession was entirely through it.  When a car at the end of the procession was involved in an accident while going through a red light, it was alleged that the police officer negligently abandoned the intersection before the entire procession was through.  Both the city and the funeral home were held responsible.

 

To counter these liability concerns, OFDA pushed through several important changes to Ohio’s funeral procession laws several years ago.  Those changes provide the following protections against liability:

 

• ORC Section 4511.453, which provides liability protections, covers not only funeral home’s owners and employees, but also owners and operators of funeral escort vehicles.  This expansion of immunity covering escort vehicles is important because in many parts of the country police forces and off-duty police have declined to escort funeral processions due to liability concerns.

 

• If a vehicle participating in a funeral procession that is not owned or operated by the funeral home or escort vehicle causes death, injury or damage due to carelessness or the failure to comply with funeral procession requirements, the funeral home and the escort service are immune from liability.  Therefore, funeral homes are not responsible for the carelessness of participants in the funeral procession.

 

• While funeral homes and escorts are liable if their employees operate hearses, escorts and funeral vehicles in a careless or negligent manner, they are not liable for any other incidents that cause death, injury or damage unless they acted in a “willful, wanton or intentional manner.”  This provision provides immunity from claims that the funeral home was negligent in organizing a funeral procession, selecting the route for the funeral procession or any other act or omission except actually operating a vehicle in a negligent manner.

 

There is a critical caveat to all of these immunities: in order to be protected against these claims, the funeral home must be operating the funeral procession in accordance with ORC § 4511.451.  This means that the funeral procession must meet all of the following requirements to immunize the funeral home under the statute:

 

• The funeral procession must be a procession of two or more vehicles accompanying the body of a deceased person or the cremated remains of the deceased person.

 

• The funeral procession must be traveling only during daylight hours and all vehicles in the procession must have headlights lighted.

 

• All vehicles in the funeral procession must be displaying a purple and white or an orange and white pennant attached to each vehicle in a manner that is clearly visible to traffic approaching from any direction.

 

• While funeral homes are generally not responsible for the acts or omissions of participants in a funeral procession who fail to follow the statutory requirements, that immunity is only provided to the funeral home if the funeral home has informed the participants of the legal requirements pertaining to funeral processions and provided them with the appropriate pennant to display on the roof of their vehicles.

 

Ohio courts have not hesitated to strip immunity from a funeral home if the requirements of the funeral procession law are not followed.  In the case of Butcher v. Churchill, 159 N.E. 2^nd 620 (1958), the funeral home provided to participants in a funeral procession a 12” by 6” purple and white marker attached to the middle of each windshield that had the word “funeral” printed thereon.  The court had to decide whether the funeral home and the participant were entitled to the protections of Ohio’s funeral procession law when a participant in the procession was struck while going through an intersection.  The court found that the sticker did not comply with the requirements of the statute because it was not a “pennant” and it was not attached to the vehicle in a way that made it clearly visible to traffic approaching from any direction.  Therefore, the court found that the immunities provided by the funeral procession statute did not apply. 

 

In the case of Dobrozsi v. Henson, 162 N.E. 2^nd 239 (1959), a participant in a funeral procession was held responsible for an accident because the court found that the car was being operated 50 to 70 feet behind the car immediately in front of the defendant.  In order to be part of the funeral procession, the court held that it was necessary to proceed as a procession and that the separation of 50 to 70 feet did not meet the statutory requirement of a procession.

 

As noted above, in order to obtain immunities under the statute, the funeral home must substantially comply with the requirements of the funeral procession law.  One of the important requirements for obtaining immunity is to inform participants in the funeral procession of the requirements of the funeral procession law.  At the end of this article, OFDA has provided sample funeral procession instructions.  It is recommended that every Ohio funeral home provide a written copy of these instructions or similar instructions to all participants in a funeral procession. The provision of the written instructions will satisfy the key requirement of the law that the funeral home shall inform participants of the legal requirements pertaining to funeral processions.  Of course, the funeral home should also place a pennant on the roof of each vehicle in the procession and ensure that they are all operating with their headlights lighted. 

 

            OFDA members with questions regarding this article may contact Scott Gilligan at (513) 871-6332.   

 

 Sample Ohio funeral procession instructions for download

 

SAMPLE OHIO  FUNERAL PROCESSION INSTRUCTIONS

 

1. Headlights.  The headlights of your vehicle must be on at all times while traveling in the funeral procession.

 

1. Pennant.  A purple and white funeral pennant or an orange and white funeral pennant must be attached to your vehicle if you are part of the funeral procession.  The funeral director will place this pennant on your vehicle.  Please do not remove it.  The funeral director will remove the funeral pennant when the funeral procession has reached its final destination.

 

1. Driving in Procession.  When driving in the funeral procession, follow the vehicle immediately in front of you.  While you should always maintain sufficient space between the vehicles so that you can safely stop, it is important to stay in line and proceed directly behind the vehicle in front of your automobile.  In order that it is clear to other drivers that your car is part of the procession, do not allow a large gap to develop between your car and the vehicle in front of you. 

 

1. Police Escorts.  If the funeral procession is escorted by a police or sheriff’s vehicle or motorcycle, follow the instructions of the officer.  Please be careful of the escort as it may be necessary for the escort ot pass through the funeral procession. 

 

1. Proceeding through Intersections.  The lead vehicle in the funeral procession will stop at intersections for red lights and stop signs.  However, when the lead vehicle proceeds through the intersection, the remainder of the funeral procession has the right-of-way, notwithstanding any red light or stop sign.  Nevertheless, all drivers in the funeral procession are urged to exercise due care to avoid colliding with any vehicle or pedestrian.