Cases

The Circuit Court of Logan County certifies the following questions:

1. Does W.Va. Code § 29-1-8a preempt a common law cause of action for direct or indirect desecration of a grave?

Circuit Court’s Answer: Yes, except as to claims for the desecration of graves and related items in a publicly or privately maintained cemetery or of graves less than fifty years old.

2. What are the elements of a common law action for desecration of a grave, grave site, cemetery, or burial ground? Circuit Court’s Answer: The elements of a common law cause of action for the desecration of a grave in a publicly or privately maintained cemetery are:

1. that it is shown that a cemetery, with identifiable boundaries and limits, exists at the place alleged;
2. that it is shown that the area was dedicated to the purpose of providing a place of burial by the owner of the property or that the owner acquiesced in its use for burial;
3. that it is shown that the area was identifiable as a cemetery by its appearance prior to the defendant’s entry onto the area or it is shown that the defendant has prior knowledge of the existence of the cemetery;
4. that it is shown that the decedent in question is interred in the area;
5. that it is shown that the decedent in question was interred by license or right;
6. that it is shown that the plaintiff is the next of kin of the decedent in question with the right to assert a claim for desecration;
7. that it is shown that the person charged with the desecration defaced, damaged or otherwise mistreated the physical area or the contents of the cemetery in a way that a reasonable person knows will outrage the sensibilities of others.

3. What are the recoverable damages in a common law action for desecration of a grave, grave site, cemetery or burial ground? Circuit Court’s Answer: Nominal damages at least, are awardable, and compensatory damages may be recovered if actual damage is shown; damages for mental distress may be awarded; and punitive damages may be awarded if a plaintiff can prove that the defendants’ conduct was willful, wanton, reckless or malicious.

4. Does West Virginia recognize a common law cause of action for indirect desecration of a grave, grave site, cemetery or burial ground? If so, what are the elements of such a cause of action and what are the recoverable damages? Circuit Court’s Answer: A cause of action for the indirect desecration of a grave site located in a publicly or privately maintained cemetery is permitted in West Virginia. The elements of such a cause of action are the same as those identified in the Answer to Question 2, above, plus it must be shown that the indirect desecration has, in some manner, affected the specific grave site made the subject of the claim in such a manner as to outrage the sensibilities of others.

5. What are the "next of kin" who possess the right to recover in a common law cause of action for direct or indirect desecration of a grave? Circuit Court’s Answer: The decedent’s surviving spouse or, if not now living, then the now living person or persons of closest and equal degree of kinship in the order provided by W.Va. Code § 42-1-1, et seq.