*1 Dec. 1991.] S016890. [No. Petitioners, al., et
DONALD PAUL CHRISTENSEN COUNTY, Respondent; OF LOS ANGELES THE SUPERIOR COURT al., Real Parties ALTADENA et CREMATORIUM OF PASADENA Interest.
Counsel Matthai, Dunn, Lieff, Matthai, & Robie & Edith Pamela E. Cabraser R. Audet, Heimann, Cabraser, Bernstein, M. Elizabeth William William Joan Kershaw, Kronick, Moskovitz, Girard, & William Robin Tiedemann A. Stewart, McShane, Belli, Belli, Brown, Monzione, Leslie Fabbro & Michael Belli, Narwitz, Zakaria, Sr., Brown, Wilner, & Melvin Richard Lewin M. *7 Klein, Wilner, Klein, Kehr, Klein, Moreno, & Walter Purcell & Siegel Sayre, Boucher and S. Purcell for Petitioners. Gilbert No appearance Respondent. Saltzman, White, Marlin, Marlin, &
Marlin & Saltzman Louis M. D. Stanley Barron, Wolfe, Saltzman, Morris, & S. S. Purdy, Jeffrey Polich Robert Collodel, Wildermuth, Brazil, G. J. Michael S. Donald L. Anthony Douglas Adams, Hazeltine, Davis, Jr., Smith, & Richard T. P. Ridge, Duque Jeffrey Warner-Fredman, Chrisbens, & Berna Madison Christopher Pillsbury, F. Sutro, A. Delling, C. F. John R. Susan Douglas Floyd, Nyhan, Anthony Kerans, Donaldes, Gerber, Berchin, & Berchin & Eugene Gerber R. Harvey C. Berchin and Berchin Jerome J. for Real Parties Interest. Imre, Main, & Levy,
Horvitz R. Christina J. Fred Catherine I. Barry Levy, Hansen, Denhalter, (Santa Fred J. Hiestand and Richard City Attorney Clara), as Amici Curiae on behalf of Real Parties Interest.
Opinion BAXTER, J. We areasked to decide than whether other those persons who contract for the services of mortuaries and crematoria or have the to direct statutory right of the of a decedent disposition body may recover damages for emotional distress engendered by knowledge negligent or intentional when did decedent’s remains mishandling they not observe the misconduct or held its Court of consequences. Appeal that those family members recover may damages for emotional distress mishandled, if suffer remains are if and that negligently intentionally the mishandling is all family intentional members and close friends of the deceased may do so.
We agree that the class of who recover for emotional distress negligently caused defendants is not limited to those have the who statutory right to control of the remains and disposition those who contract not, however, for disposition. The class is as as that identified expansive the Court of As in Appeal. all recovery negligence, potential plaintiff must be a person to whom the defendant owes a duty recognized by the law. context, In this is owed duty to those close members who only were aware that funeral and/or services were being performed, and on whose behalf or for whose benefit the services were rendered.
Therefore, and because we also conclude that the individual the class they seek to lack an intentional represent to recover on standing infliction of emotional distress theory, of the Court of judgment Appeal must be modified.
I made to sue standing by on ruling on review of a This matter arises court’s request trial At the trial court a coordination proceeding.1 a desig- of allegations based on standing of question briefed parties rulings of preliminary selected for the purpose nated “model” complaint, of treated Appeal The Court filed in the coordinated actions. from those demurrer,2 accepting on a ruling the nature of a as one ruling proceeding, of this as true for purposes of the model allegations complaint on behalf of action stated a cause allegations and whether those considering individual plaintiffs the class the individual and of all of the plaintiffs, sought to represent.3 mandate, an after issuance of writ
In for of petition response plaintiffs’ writ issue to a peremptory directed that alternative writ the Court of Appeal standing its order to recognize the trial court to modify compel additional plaintiffs. as described although the ruling, the Court of agree Appeal
We with as the demurrer inasmuch on a ruling the nature of standing, one on class the plaintiff and determine whether all of the plaintiffs effect was to emo- could recover for which each a cause or causes of action had stated in that raised having as been We address the issues damages. tional distress context. consisting as one defined the class
The model complaint relatives, decedents and designated representatives surviving spouses, individual plaintiffs defendants. The had mishandled whose remains been have the class who the class are within who seek to represent and possession and the right custody right responsibility handling, remains, under or may acquire of their decedents’ possess control disposition the Health and Code4 to Safety section 7100 of Court, 1541(a)(4). particular rule seq., 1See Rules of rule 1501 et and in California fourth amended proposed A complaint complaint. 2The model is the second amended was also stayed, are (PPAC), proceedings because below complaint which has not been filed economy. Appeal judicial considered the Court of in the interests briefing request court’s a class action. The trial yet 3The action has not been certified as ruling. of that anticipation made in question standing appears on the to have been indicated, Safety Code. are to the Health statutory all references 4Unless otherwise “statutory as occasionally claiming rights Persons under section 7100 are referred holders.”
remains, services, services, and/or contracted for defendants’ for the paid the represent estates of who did so.5 persons All the of individual and class as members of plaintiffs plaintiff therefore, are, and/or contracting described the model complaint parties relatives of decedents mishandled.6 allegedly whose remains were
The defendants fall into two as designated by plaintiffs classes principal “mortuary” defendants and defendants. “crematory” mortuary to, to, defendants allegedly agreed provide undertook contracted and funeral-related services for the benefit of and to plaintiffs, accomplish cremation of the remains of decedents “with plaintiffs’ dignity wishes, due them in respect accordance with and decedents’ Plaintiffs’ sensibilities, with keeping public accordance with the law.” The mortuary defendants contracted with the defendants for cremation crematory of the remains. defendants, which crematory would represented they perform manner,
cremations a dignified and respectful authorizing forms provided 6,050 5The model complaint alleges plaintiff that the at class consists of least members. Defendants state allege that the 15 coordinated disposition lawsuits misconduct in the of 16,500 decedents, thus creating potential greater magnitude. class of much 6The standing of friends of the decedents to sue for emotional distress suffered as a result of intentional mishandling of by allegations remains was not raised in the trial court of the complaint, model and thus scope by was not within the of the alternative writ issued the Court Appeal of to review the proposed trial court order. Plaintiffs an amendment to the PFAC which would name as an person individual one who is described as a friend one decedent. The Appeal Court of held plaintiffs complaint could amend the to name an aggrieved party. friend as a The Court of Appeal may have addressed the issue because the petition for writ of mandamus related to a ruling in a coordination proceeding. Rule 1505 of the California Rules recognizes Court that writ review sought be of orders in coordination proceedings. No special govern rules appellate review rulings in coordination but proceedings, the Court of Appeal’s willingness to anticipate dispose might filing of issues that arise on the amended complaints subsequеnt disposition proceeding comports writ with the actions, purpose of coordination of judicial civil which includes use the efficient resources. Proc., (Code 404.1.) Civ. § Consideration of appropriate the PFAC was for that reason. The PFAC adds as named representatives individuals who are of the various classes and subclasses identified complaint. in the The Court of Appeal permitted amendment of the writ petition for mandate, which initially sought had relief on behalf of an persons unidentified class of denied by relief virtue of the trial court standing, identify petitioners order on name. We reject therefore that claim crematory made some defendants that the mandate petitioners are unidentified who cannot establish that have a beneficial interest in Proc., 1086; subject petition. (Code matter of the Civ. Psychology Examining Carsten v. § Com. 27 Cal.3d 276].) 614 P.2d Our disposition of other issues unnecessary argu- makes the consideration of defendants’ ment that ruling on standing of friends was error. to enable the latter consent to obtain defendants mortuary cremation to the on defendants solicited kin business from the next of whose defendants. and the behalf of both themselves *10 known, knew, and illegal or should have of The defendants defendants. crematory of improper practices defendants, and its Company The Carolina remaining Biological Supply Gabriel, (collectively, Carolina William G. residents of North agent and human defendants), organs and purchased Carolina allegedly requested failed to Carolina defendants defendants. The crematory from body parts demurrer, overruling their review an earlier order of the trial court seek of standing on the ruling of Appeal and did not seek review of Court In defendants. the Carolina who seek from recovery subclass plaintiffs holders statutory right held that ruling, only the Court of Appeal that, or- bodily defendants allegedly, purchased recover from Carolina defendants, crematory decedents and taken from gans parts plaintiffs’ defendants knew or in the Carolina and did so under circumstances which necessarily of human remains would should have known that desecration occur.7 and for the of each class directly PFAC seeks relief members against which The events about others on and agency conspiracy.
acts of theories 1980-1987, were discov- but occurred plaintiffs complain period 1987, first learned “from ered until when by plaintiffs February plaintiffs had mishandled media that their decedents’ remains been public reports” the manner alleged complaint. defendants mishandled model that the complaint alleged remains, remains, sections
and mutilated human and violated commingled 7051, 7052, 7054.7, and Professions Code and as well as Business 7735, and section Penal Code section 487.1. review, 7Although Biological Supply Company petitioned nor Gabriel neither Carolina in their answer to identify ruling and did not this as an additional issue for review defendants, Supply Company has petitions Biological the other Carolina review (See permitted proceeding. Young been this Woods v. file brief on the merits in Baxter, 455], J.) has not opn. Cal.3d 807 P.2d conc. Gabriel negligently appeared argues only theory in this court. The that it is sued on a that it company claim, complaint failed to discover the misconduct of the other defendants. The refutes violations, alleges statutory agency however. It and seeks to hold all defendants liable on recovery.
theories of that those charging and one of this allegation support More specifically, ‘harvested,’ or permis- authorization without had “removed and defendants decedents’ sion, plaintiffs’ from body parts human and organs numerous in the remains remains,” cremated that defendants the complaint alleged Ceramics; in disrespect- remains cremated kiln defendant Oscar pottery kiln manner; at the together pottery as 10 to 15 bodies many ful cremated as locations; metals and other sold gold and bodies at other took multiple remains; containers in urns or other remains from the cremated placed re- mutilated decedents’ identity; without their integrity preserving Plaintiffs’ taking limited to the unauthorized mains but not “including, corneas, hearts, body and bones organs, and other lungs decedents’ eyes, . . .” which were sold for Defendants’ profit. parts, *11 defendants, funeral-related provide had to agreed who mortuary of plain- remains for the benefit cremation of the services and accomplish tiffs, in circum- for services with the defendants had contracted was that this conduct have known stances which knew or should or would occur. occurring and will con-
On suffered discovering plaintiffs defendants’ misconduct shock, worry, anxiety, extreme injury, outrage, tinue to suffer “physical distress, mortification, embarrassment, humiliation, and sorrow.” grief, action, Interference The ninth identified “Intentional cause of as one for Distress,” that the crema- with Remains and Infliction of Emotional аlleged interfered with tory and defendants had and wilfully deliberately and cremation of rights duties of to effect plaintiffs proper and “by organs body parts, remains the remains mutilating by ‘harvesting’ cremations, cremated decedents’ by performing multiple by commingling residue, remains, with and by remains other cremated and with nonhuman remains, and Plaintiff’s decedents’ unceremoniously disrespectfully handling mishandling rather than and with by separately, respectfully, dignity, like cremated remains . suffered allegedly injury . . .” As result plaintiffs that described above. action,
The 10th Interference cause of identified for “Negligent as one Distress,” with im- Remains and Infliction of the same alleged Emotional conduct and and proper injury caused defendants’ reckless by negligent, careless interference with the plaintiffs’ statutory rights responsibilities to their dispose alleged remains of decedents. This count also cremated, handled, defendants had and treated their remains decedents’ 880 decedents,
ways unauthorized which were plaintiffs contrary and their wishes, their interference was beliefs. Such accom- requests, mutilation, plished through the common course and of unauthorized practice cremation entrustment improper commingling Negligent remains. the remains to handle them also persons unqualified alleged.8 Mortuary, Cohen v. Groman Inc.
Citing Cal.App.2d [41 481], Temple Kaplan (1976) and Sinai Cal.Rptr. Cal.App.3d 80], as court ruled those controlling, only trial who were entitled section control the of their dece- 7100 to disposition death, dents’ remains as of date or who actually decedents’ contracted had set forth disposition, standing assert claims model complaint.
II Section disposition 7100 establishes and duties of human rights remains, providing:
“The right to control the of the a deceased person, remains of disposition decedent, in, unless other directions have the and by been vests the given duty of interment and the the reasonable cost of interment of liability such remains devolves the named: upon following order
“(a) The surviving spouse.
“(b) The child surviving or children of decedent.
“(c) The surviving of the parent parents or decedent. “(d) The or person degrees the next of kindred respectively the order named laws of California as entitled to succeed to the estate of the decedent. action, remaining 8The causes of to directly except none of which at issue here the extent that the seventh cause of negligence overlapped duplicated action for the tenth cause of aсtion, contracts, sought declaratory injunctive respect relief with to written and oral sought contract, dealing, for breach of faith and good breach covenant of fair deceit, breach of fiduciary duty, fraud misrepresentation, and unfair business
practices. has sufficient assets. deceased administrator when the “(e) public » <6 relevant to relied and/or on statutory by plaintiffs Other provisions following: made include the by plaintiffs claims entitled to interment is who has the section 7100 duty person if remains are cremated the remains for that custody purpose, (§ 7102.)9 burial at sea. (§Act et Anatomical Gift
Pursuant to the version of Uniform arose, in effect when an individual had the primary this case seq.) make, (Former gift. or refuse an anatomical making permit, permit 7150.5.) any remove any part 7151. See now It was and is a felony § § with the while interment awaiting human remains from place deposited it, holds who given by person intent to sell unless written permission Code, 367f.)10 (§ See Pen. right. section 7100 7051. also § commingling Section cremation remains and prohibits multiple 7054.7 holder, of remains without the written of the section 7100 permission makes it a making violation of its a misdemeanor. Section 7055 provisions misdemeanor to remove remains from one district to registration primary another, a funeral director’s without a except conveyance, permit local registrar.
Ill Before the causes of and intentional considering negligent action for remains, interference with addressed the plaintiffs’ Court of Appeal person signs identity 9The who an also warrants the of the authorization for interment (§ 7110.) whose person remains are to be interred. who buries cremated remains alia, at stating, sea must file a verified statement and deaths inter registrar with the of births (§ person. 7117.) the name of the deceased 10Legislation adopted gold makes of dental or silver from remains without 1988 removal (§ permission felony. 7051.5.) body written dead The theft of other articles of value from a Code, felony (Pen. be either a or misdemeanor. § 882 them,
standing to seek on a recovery or some of were theory plaintiffs, third party beneficiaries of a contract for services. It concluded that mortuary a section 7100 right holder is the only express beneficiary of a contract for services, if mortuary and that was not the contracting party section 7100 holder, only holder of that right may be seen as an intended of the beneficiary contract.11The section 7100 did devolve according scheme, however, if statutory the holder at the date of the death of the decedent himself or herself died.
After considering
Thing
(1989)
this court’s recent decisions in
v. La Chusa
814],
In reaching these the Court of Appeal applied well-settled principles the tort of governing The court negligence. recognized, as had this Clinic, Inc., court in Marlene F. Psychiatric Medical Affiliated 583, 588, Cal.3d that when are damages sought for inflicted negligently distress, the tort is negligence regardless specific name that tort, may be used to describe the and that the elements of breach of duty, duty, causation and must be pleaded proven.
The court reasoned that when a mortuary agrees to care for the remains of decedent, a special relationship created between the and the mortuary close family members of the decedent virtue of the nature of the services the mortuary perform. undertakes to The mortuary’s duty to properly dis- 11We express no holding, view on this but note that none of the contracts services was set forth in the complaint model incorporated by attached to and reference *14 into the complaint. Our conclusions here regarding the nature of contracts and services be inconsistent with those of the Court Appeal on this point. family 12The members whose to Thing recover was confirmed in were “relatives residing children, in the same parents, household or siblings, and grandparents of the victim.” Chusa, 644, 668, (Thing v. supra, La 48 Cal.3d Observing fn. that the direct victim in child, Thing was a the Appeal Court of reasoned that we had possibility overlooked the that a grandchild who was bystander distress, a might equivalent witness suffer mental and held that grandchildren should also be close considered relatives. with runs to all persons for the decedent caring its
charge responsibility actually who to the relationship, just person it has that not special whom that duty may a breach of It is foreseeable that contracts for services. family.13 of the bereaved emotional distress to members cause severe for intentional In entitled to recover a broader class of recognizing persons Amaya in v. relied language the Court of on mishandling Appeal of a corpse, Ice, Co. 59 Cal.2d Supply Home Fuel & Chusa, Cal.3d 513], supra, Thing with v. La 379 P.2d quoted approval 644, 652-653, intentional liability distinguished which culpability those who are merely negligent: tortfeasors from that of to wrongdoer appears on an intentional liability imposed increased “[T]he the actor for the interests of reflect the fact that solicitude psychological and the social moral increases weighs guilt less the balance as his [or her] of his conduct diminishes.” utility [or her] reasoned, La Thing v.
The Court of also based on statements Appeal Chusa, alleged, 48 Cal.3d that when an intentional tort others, deter such conduct society wrongdoer seeks to both punish out of all to a defendant’s negligence imposition liability proportion limit to as narrow necessary liability concern. Therefore it is not For that negligence injury. class as is case when is the cause of reason, in a close family no limitation of arbitrary recovery with the when the defendant had inten- relationship decedent was required need not be mishandled a Close friends of decedent tionally corpse. denied the right to recover.
IV
Negligence
A. Standing.
Defendants contend that the to recover for emotional distress of human remains should be limited to those mishandling caused con actually members of decedent’s who witness In duct. order to avoid creation of limitless out liability proportion Chusa, drawn, the line La Thing defendant’s fault should be as it was 13The recovery statutory right restriction of from the holders Carolina defendants to followed relationship from the conclusion of the Court of existed Appeal special that no between plaintiffs and those defendants. decision. challenge aspect Plaintiffs do not *15 644, supra, 48 Cal.3d so as to restrict recovery to those who are able persons to establish a direct causal link between of the misconduct and perception the emotional distress suffer. The Court Appeal, they argue, has erroneously recognizеd a new human remains—which is tort—mishandling not so limited. true, observe,
It is as defendants that the tort with which we are concerned is negligence. Negligent infliction of emotional distress is not an Clinic, (Marlene Inc., Psychiatric F. v. tort Medical independent Affiliated 583, supra, 588), 48 Cal.3d nor is negligent mishandling of human are, however, remains.14 Those names convenient terminology descriptive Nonetheless, in context which the negligent conduct occurred. recog nition that the on which theory is recovery does not sought negligence Chusa, mean that the principles which Thing v. La our in governed decision supra, 48 Cal.3d compel a similar result here.
Thing Legg Dillon v.
885 limitless, to define and the court undertook class of potential plaintiffs (Thing v. La duty. the defendant owed a circumscribe the class to whom 728, 644, 652; Chusa, supra, supra, Legg, Dillon v. 68 Cal.2d 48 Cal.3d 733-735.) with the begin always
In for we determining liability negligence, 1714, (a): “Everyone respon command of Civil Code section subdivision acts, sible, injury also for an for the result of his willful but only in the manage want of care or skill by ordinary occasioned to another his has, by ment far the latter willfully of his so as property person, except care, In of a himself.” the absence ordinary brought injury upon want of rule, the general principle this statutory provision limiting exceptions clearly for are when liability negligence recognized only supported imposing 108, 112 (Rowland (1968) Cal.2d v. Christian 69 public policy. [70 97, 561, Dillon, 496.) Thing Amaya, 443 P.2d 32 Cal.Rptr. A.L.R.3d reflect who bystander a which limits the public policy exception did injury injury not suffer and was not threatened with such physical a result damages bystander recover for emotional distress the suffered as which to a third witnessing negligent injury conduct caused physical If event person. and all who witnessed the any bystanders injury-causing distress, were the defendant’s to recover for permitted ensuing (Molien v. liability could be out of all to the of fault. proportion degree 916, (1980) Kaiser Hospitals Foundation 27 Cal.3d Cal.Rptr. 922-923 [167 831, 813, Ice, 518]; Supply 616 P.2d 16 A.L.R.4th v. Home Fuel & Amaya Co., 295, Cal.2d a justified 59 Public therefore limitation policy on the right to recover the emotional distress statutory damages injury.
We with agree defendants that considerations are relevant public policy determining whether a particular recover for emo plaintiff may true, however, tional distress. This is whenever a asserts that the plaintiff negligent conduct of another breached a owed to the duty plaintiff.
“The (Richards existence of duty Stanley of law. v. question 60, 43 Cal.2d 23].) 66-67 P.2d duties are not discoverable facts ‘[L]egal [271 nature, that, but merely conclusory expressions particular cases of type, liability should be imposed damage (Tarasoff Regents done.’ University (1976) 17 Cal.3d of California P.2d 1166].) A.L.R.3d
“It is a fundamental proposition of tort law that one is liable for injuries said, however, caused a failure to exercise reasonable care. We have considering existence of case several ‘duty’ given factors require consideration ‘the including of harm to the foreseeability plaintiff, degree of certainty injury, suffered the closeness of the connec- suffered, tion between the defendant’s conduct and the injury moral conduct, future preventing policy blame attached to defendant’s harm, to the extent of the burden the defendant and consequences *17 care for resulting liability exercise with imposing duty of to community cost, breach, for the risk the and of insurance prevalence and availability, 741, (1980) 750 (Thompson v. Alameda 27 Cal.3d County [167 involved.” of 701].) P.2d 12 614 A.L.R.4th Cal.Rptr. a conclusion that of does not compel these Application principles Thing in v. and v. La Legg, supra, the deemed Dillon limitations appropriate Chusa, limit other situa bystanders apply to should recovery by tions, here. and particularly presented to its is relevant resolu- dispute
The context which this arises unique defend- that the and complaint alleges mortuary tion. model the of remains expeditious disposal ants undertook not an simply provide to the statutory of decedents which the holders of as a means plaintiffs’ the fulfill an rights contracting obligation imposed by or the could party Rather, and appropriate the undertook provide state. defendants normally members antic- dignified family services of that bereaved type of, facilitating are to the conduct or ipate. Those services not limited of, rites, through arranging conduct ceremonial or funeral but extend alternatively of the burial or or through encryptment, commitment remains and inurnment of the ashes of decedent for disposition cremation or other (American Concepts the services Funeral v. family whose were performed.15 (1982) Funeral 136 306 Cal.App.3d Board Directors & Embalmers of cremation.”].) include Cal.Rptr. [186 services” “burial 196] [“Funeral Moreover, a decedent relationship family pro- between of major vider of funeral-related services exists for of purpose part relieving obligation prepare the bereaved relatives of the to personally burial or delegated remains for cremation. others responsibility members those because do not want to undertake or witness prepa- who, alia, a funeral 15By engages “Preparing definition director is one inter in: for the transportation disposal, directing supervising transportation or burial or or burial or Code, disposal (Bus. of dead human bodies.” & Prof. § The term “funeral director” are used interchange- as defined in this section “morticiаn” Code, ably, (Bus. 7616) as terms “funeral & and “mortuary.” are the establishment” Prof. § Industries, (See, 915]; Stephens IFS Inc. v. (1984) Cal.Rptr. e.g., 740 Cal.App.3d [205 Mount Memorial Park Vernon v. Board Funeral Directors & Embalmers (1978) Mortuary in 275]; State Bd. Funeral Directors Westmin- Cal.Rptr. Cal.App.3d 874 ister Memorial Park 832].) Cal.App.2d 638 [76 course, class, trial, may, proceedings certify Defendants or at during demonstrate disposition plaintiffs’ the contracts into which they entered for of the remains contemplate alleged decedents did not type complaint. services in the Therefore, any family it would be the case in which exceptional rations. In in the alleged complaint. would observe misconduct of the type member its misconduct or that the who do not witness the persons arguing statutory limited to the for emotional distress be to recover consequences and dissent- concurring defendants and the contracting holder or party, immunity create an Kennard invite this court to ing opinion Justice distress caused them from the serious emotional liability protecting clandestine, decline to do. Were This we egregious, such but misconduct. well be might harm suffering greatest this approach adopted, much less while one barred from for their emotional distress recovering *18 affected would be to recover. permitted contracts for actually
It is that the of the individual who apparent identity of the or services or holds the to mortuary statutory right dispose incidental, the remains of a decedent is and is not a reliable indicator of if the the distress family may greatest members who suffer are children the decedent decedent’s remains mishandled. One of several surviving the well as a arrange siblings, services on behalf of all as so, If a spouse parent crematory mortuary of the decedent. the or assumes the duty to all of these members. There is no reason to assume that family who makes the to emotional person arrangements any susceptible more if distress the are than are the services other competently performed Indeed, members. in family light of the emotional of the death impact bereaved, family close member of the it the relative affected may be least who is chosen in by to them for funeral and family represent arranging related services.16 Kennard,
Contrary to the view of Justice the services for which the holder statutory right member contracts are family rarely performed for the benefit that contracting party Recognitiоn mortuary alone. services are performed for the benefit family members other than or holder contracting party both statutory right apparent past California decisions and jurisdictions, those of other as well as the legal care, literature.17 “Once a . . . undertakes to accept Leavitt, 16See (1964) The Liability Anguish Hastings Funeral Director’s Mental 15 L.J. 464, 477, 50, 563], (1961) footnote and Jones v. Caine N.Y.S.2d 31 Misc.2d [222 17Leavitt, op. Hastings cit. page L.J. at services observes that funeral-related principally are for the comfort of the living, having leading as aim the consolation of the their survivors, mourners. expectations The of the and “essence of the contract a reasonable [is] expectation of dignity, tranquility, and personal (Id. p. consolation.” at Numerous out-of-state decisions permitted have actions other than by close relatives statutory right contracting parties holders and go against forward who have defendants corpse mishandled the plaintiffs’ loved one. Some expressly recognize standing of these remains, of care must duty a be found custody running control of the (Draper Mortuary family.” Superior members of decedent’s bereaved 396].) Court The Draper 135 Cal.App.3d court, case, like the the instant that recognized Court of Appeal services, the undertaking defendant had created provide mortuary between and the of the decedent virtue of which relationship family itself (135 an affirmative avoid harm to the members. duty family arose to 537-538.) at Cal.App.3d pp. Quesada Court of reached a similar v. Oak Hill Appeal conclusion Co.,
Improvement supra, 213 sister Cal.App.3d holding expressly and niece of the decedent had not for funeral services could who contracted recover for the emotional of the defendant distress suffered as result There, in the their decedent. mortuary’s negligence handling of corpse as a result of negligence, body defendants’ of another person and buried members prepared notwithstanding protestations body recognized was that of a The Court of that the stranger. Appeal did but theory, not seek on a Dillon bystander-witness claimed negligence. to be foreseeable direct victims of the defendants’ *19 duty identified the court to the close relatives duty mortuary of a decedent it was to handle the existed because properly corpse. duty foreseeable that defendants’ conduct cause severе mental clearly might trauma to with the deceased. persons having relationship close however, Inc., Mortuary, supra,
Defendants
on Cohen v. Groman
231
rely,
1,
1103,
Temple Kaplan, supra,
Sinai
v.
54
which
Cal.App.2d
Cal.App.3d
Quesada
court
In
distinguished or declined to follow. Cohen v. Groman
Inc.,
mother,
(hereafter
Mortuary,
supra
Cohen), the
were the
two
plaintiffs
children, husband,
aunt,
minor
married
and a
daughter,
two brothers
sister of
service,
the decedent. One brother and the sister
for the funeral
arranged
which the
during
defendant
substituted the
mortuary negligently
body
another for
decedent. The
held
if the
plaintiffs’
grava-
Court of
that
Appeal
persons,
standing. (See
(1986)
other
others
Carney
Cemetery
assume
v. Knollwood
Ass’n
33
430,
members];
App.3d
Ohio
family
Thompson
31
N.E.2d
blood descendant
[514
435] [direct
Homes,
324,
(1982)
v. Duncan Bros. Funeral
Inc.
The Cohen court 1) based its decision on Cal.App.2d a right failure of the to define a to them or to describe duty running Ice, Amaya v. Home on which their action was on Relying part predicated. Co., Supply Fuel & 59 Cal.2d subsequently which this court Legg, supra, Dillon (in 728), held overruled 68 Cal.2d the Court of Appeal that there a result was no to recover for emotional distress suffered as right conduct directed at another The court did not undertake person. an analysis of the nature of services or consider independent whether are for the benefit of other than the con- performed tracting identified as intended of the party persons expressly beneficiaries contract.
Cohen, supra, an in the Cal.App.2d recognized reflects approach Torts, Restatement Second of section for interference with liability dead bodies tо the runs member family having right dispose However, remains. statement of rule is a caveat that accompanied by American authoring Law Institute took no position liability on to other members, and is a comment that at that time accompanied by noting the “technical basis of the cause of the interference action with [was] exclusive In control of .... the technical body practice has served as a mere peg which to upon hang damages mental *20 Torts, 868, distress inflicted upon (Rest.2d a.)18 the survivor.” com. § the original Cohen Both Restatement are now inconsis position tent with more recent authority. Section 868 of the Restatement changed was after the Cohen decision. It now addresses for and reck liability less, intentional, well as as conduct and longer no limits to recovery family notes, (Rest.2d 75.) members. Torts (appen.) To the reporter’s p. § here, extent that Cohen conflicts with our decision it is disapproved. caveat, 18In a to the comment the Restatement Second of Torts observes that as of the time published was the person it had been the entitled to disposition body, of the and in the absence of decision the American Law expressed opinion Institute no on whether under family some circumstances other members would have a cause of action for their own emotional distress. implicit In an criticism of the unrealistic limits for which defendants now argue, outrageous the comment states: “The body mistreatment of a dead in the presence of surviving relatives appear would proper be a case for liability .... But even when the conduct of the merely negligent, defendant is it is difficult to conclude that a widow who has right technical of disposition of the body but is not present on the scene entitled should be recover, daughter Torts, while a present, who is but right (Rest.2d has no such should not.” g., com. at p. § 1103, on which the trial Temple supra, Cal.App.3d Sinai v. Kaplan, support and does not different question, court relied in involved a part, holder could state statutory right defendants. The whether only issue The minor that right. a cause who usurped of action against person decedent, her from the father of daughter damages of decedent sought services, an for and burial for funeral grandfather, who had contracted of disposition her to control statutory right interference with alleged (§ 7100.) decedent’s remains. relative, lie a close against held that an action would
The Cоurt of Appeal statutory with the interference well for tortious cemetery, as as mortician remains, procedures burial improper a decedent’s dispose holder would the statutory to the beliefs of contrary which were Kaplan, (Sinai Temple v. rights. with that person’s constitute interference remarkable. 1112.) That was not holding “[T]he at p. Cal.App.3d kin, body ‘owning’ in the full sense proprietary next while not deceased, and for will protected, in the which be rights body have property v. (O’Donnell indemnification.” which are entitled to a violation of 906].) P. (1899) 123 Cal. Slack funeral and in the performance for recovery negligence question supra, 54 Cal.3d Temple Kaplan, in Sinai
related services did not arise suggest facts to allege did not cross-complaint daughter’s 1103. any had suffered daughter or that corpse defendants had mishandled had performed the manner which the cross-defendants as a result of injury relatives to seek services. The of other rights funeral related was not funeral and related services negligence performance the court. before occurs in the of funeral-related services provision
When misconduct the decedent’s to members of secret and its are not consequences apparent distress suffered all close for the emotional family, permitting recovery when the mis- members whom services are performed family held the statu- of which member light, regardless conduct comes to services, Recog- should be allowed. tory right actually contracted for the contemporary nition their cause of action is consistent with fully *21 the a to avoid harm to duty discussed above which existence of principles a is determined. particular plaintiff Clinic, Inc., Medical Psychiatric We Marlene F. v. recognized Affiliated 583, 590, severe emotional distress may 48 Cal.3d that damages owed the duty plaintiff
be recovered “when result the they from breach as a matter of assumed the on the defendant defendant or imposed law, Defendants between the two.” relationship or that arises out of special here of the decedents for whose benefit assumed a to the close relatives duty created a thereby were to funeral related services. provide They and/or in the digni- them to those services special relationship obligating perform fied and and manner the bereaved respectful expect negligence this the action opеrators.19 duty distinguishes existence of here who were from those of the pleaded bystander-witnesses plaintiffs Chusa, 644, Legg, supra, v. La Dillon v. Thing supra, 48 Cal.3d Cal.2d 728.20
Tort
for breach of a
out of a third
contract
recovery
duty arising
party
In Biakanja
also consistent with well-established California
v.
precedent.
16,
1358],
Irving (1958)
We agree that unlike the other did not any assume duty related to the delivery funeral-related services. One theory on which sued, however, it is is that it negligently contracted for and purchased human from the organs crematory defendants under circumstances which it knew recognize 19We statutory right holder has the exclusive to control remains, disposition of do so ain manner offensive to family other members. (Ross v. Forest Lawn Memorial Park 153 Cal.App.3d 993-944 [203 1049].) 42 A.L.R.4th This does preclude liability to those other members for whose benefit the services were to be performed. 20Recognition that defendants assumed this duty also refutes defendants’ assertion that permitting recovery in the alleged greater circumstances here will afford protection to the dead living. than to the *22 892 with the laws of complied have known that the crematories had
or should state, human absent the organs this which removal and sale of prohibit dо not seek of the decedent or the holder.21Plaintiffs statutory right consent defend- crematory for the impute liability negligence Carolina ants, induced the to hold on a that it theory encouraged but Carolina liable unlawful conduct of the defendants. in may subject conduct of another
Negligence procuring injury-producing have wrong may actor for that conduct. “A’s own negligent liability through wrongful some to the of harm to C B's way causing contributed (5 A et have that may very wrong.” Harper conduct. commanded or procured al., 26.1, (2d 1986) The Law Where a defendant has of Torts ed. p. § that the act in under it is foreseeable induced another to circumstances which will cause to a third is found. injury liability conduct party, of the Second Restatement principle, recognized This section 302A 22 (1986) City Torts underlies the decision of this court Pool v. Oakland 528, 1163], 42 There we held that a Cal.3d 1051 728 P.2d Cal.Rptr. [232 which of felonious conduct supermarket negligently accused customer investigation summoned could foresee that the police, resulting police for which the arrest of the innocent would cause emotional distress wrongful, While the have been supermarket police may was liable. conduct (Id. 1064, 1065.) “If the defendant at injury. cause of the proximate pp. in a manner is a hazard person may particular likelihood a third react negli- which makes the reaction whether innocent or negligent, actor such does not liable for the harm caused gent being actor from prevent General, 40, (Weirum (1975) RKO 47 thereby.” Inc. 15 Cal.3d [123 539 P.2d to decedent killed auto crash established [duty 36] arrive members radio audience to be first to foreseeability inviting also, at Bell encourage location would reckless See v. Illinois driving]. Ditez Telephone Co. N.E.2d Ill.App.3d [507 26] [defendant if defendent liable for defendant knows that with whom trespass party will contracts enter another’s land to contract without perform obtaining consents]; Library (D.C. 1984) Clark v. Cir. 750 F.2d required Congress rights].) violation of civil App.D.C. [inducing plaintiff’s 241] 7151) alleged (see now complaint, At the time of incidents in the section 7151.5 § priority established an order of of relatives entitled to make anatomical donations. parallels priority that established section 7100. may 22Section 302 A of the Second Restatement of Torts: “An act or an omission be negligent harm if the actor realizes or should realize that it involves an unreasonable risk of through to another person.” or reckless conduct of the other or a third Section 302 B оf the Second be Restatement of Torts: “An act or an omission negligent if the actor of harm realizes or should realize that it involves an unreasonable risk harm, through to another the conduct of person the other or a third which is intended to cause though even such conduct is criminal.”
893 the PFAC also allegations allege, might be amended to joint on a allege, liability enterprise theory. joint enterprise context, while invoked outside theory, rarely automobile accident is also Keeton, 72, (see & (5th 1984) well established Prosser Torts ed. 516- p. § 521) this state as an recognized to the rule that exception general for the imputed liability negligence another will not be recognized. “It only where a acts person actually through another to his accomplish own ends that the law will or should such impose liability. Right vicarious control over other is a person test of the but it is required relationship, not itself the justification for Aside imposing liability. from such legal servant, etc., relationships as master and agent, before the principal courts will find that the were there clear parties joint adventurers must be evidence of a in a community interest common which each undertaking has or participant exercises equal joint control direction. A joint venture [Citations.] is sort of a mutual akin a limited agency, It is partnership. not sufficient that the have certain [Citations.] parties plans common, but the community of interest must be such that [each] entitled to be heard in the control the enterprise]. [of Most of the [Citations.] cases indicate that the common interest must be of some business nature.” (Roberts (1954) v. 124 Craig 208 Cal.App.2d P.2d 43 [268 also, A.L.R.2d See King Ladyman (1978) 1146]. 81 Cal.App.3d 782]; 842-843 Cal.Rptr. [146 v. Andersack 63 Cal.App.3d DeSuza Witkin, 694 See also (9th Summary 920]. of Cal. Law ed. Torts, 1008, 1988) 399-400.) pp. §
We cannot that it say was not foreseeable reasonably to Carolina that its conduct in offering buy substantial of human quantities organs and body parts from the crematory defendants would induce those defendants to obtain the organs and body a manner parts that would cause extreme If, emotional distress to the section holders. under the circum stances, Carolina should have foreseen that the defendants would law, violate the then its conduct may be found to be negligent per se. Section 7051 makes the unauthorized removal of a body part with the below, intent to sell it a felony. As we explain statutes governing the disposition of human remains exist not only to ensure removal of dead health, bodies and protect public but also to prevent invasion of the reli- moral, gious, and esthetic sensibilities of the survivors. These laws were enacted to prevent the type of harm here alleged to the statutory rights holders, and Witkin, create a duty (See to those persons. Summary Cal. Law, Torts, 820, 833, 173,189.) at pp. §§ Obtaining consent of the statutory right holder removal for sale of body organs is an obligation *24 Code, (Civ. law, lie. a civil action will which for the violation of by
imposed necessary to relationship is or special No contract §§ the statute. to be avoided sought the harm to recognition duty prevent common law that well established of this rule is so Recognition in se, codified has been which it is a part, of negligence per doctrine of Code, 669.)23 (Evid. § of negligence. as a rebuttable presumption California conduct induced the unlawful Carolina the terms of its contracts Whether in defendants, the manner over exercised control joint or crematory of the in a engaged and thus was removed organs defendants crematory which only that it was purchasing failed to ensure negligently and joint enterprise, law, was a proxi- and thus California for sale to pursuant removed organs factual are suffered by plaintiffs, the emotional distress mate cause of only here that We hold in later proceedings. to be decided questions Carolina. from standing have to seek holders statutory right Duty. Recognition in Policy Considerations B. exists duty in whether determining the court
The which guide principles the plaintiffs, to duty that defendants owed our conclusion fully support case. have this standing who . injury in Foreseeability certainty
1. funeral-related crematory services—mortuary and defendants. foreseeability dispute defendants do not in the model com- alleged human remains the manner
that mishandling members of emotional distress to cause serious plaint likely the actual of whether observe family regardless decedent’s immediate their decedent. conduct or to the remains of injury contract, where recovery Even in the an for breach of context of action nor- from a breach is not resulting for emotional distress damages solely “(a) to exercise due care is person 23Evidence Code section The failure of a 669: presumed if: statute, ordinance, “(1) entity; regulation public He violated a or “(2) property; proximately injury person caused death or or The violation statute, “(3) of the naturе which the injury The death or resulted from an occurrence ordinance, designed or was regulation prevent; “(4) was one of the suffering person property to his or person injury death or the ordinance, statute, regulation adopted. was protection class of for whose allowed, the services related to the human mally disposition provision distinguished remains has been because of the nature of the services. unique 915], This court so held Chelini v. Nieri Cal.2d P.2d body where defendant a contract to preserve mortician breached distress, The court there plaintiff’s recovery mother. held illness, context accompanied by symptoms permitted of physical comfort, directly because contract was related to the happiness, *25 welfare personal of the plaintiff. 207, in (1980)
More Allen v. recently, Jones Cal.App.3d [163 445], the of a contracted to e.g., operators ship defendant the remains of decedent brother another The remains were plaintiff’s to state. lost in transit. The Court of held the was one which so contract Appeal affected vital an recovery concerns of individual for was permitted, distress explaining:
“A contract
a
whereby
agrees
body
mortician
to
for burial is one
prepare
in which it is reasonably
anguish
foreseeable that breach
cause mental
may
to the decedent’s bereaved relations. ‘One
a human
for
prepares
body
who
burial and
conducts
funeral
with
in
usually
living
deals
their most
difficult
delicate moments ....
exhibition
callousness
indifference,
can,
course,
the offer of insult and
no
inflict
indignity,
injury
dead,
on the
but
can
they
visit
akin
torture
true is
agony
living.
to
on
So
this that the chief
asset
mortician and the most
element of
conspicuous
his advertisement is his consideration for the afflicted.
decent
respect
A
their
in
feelings is
(Fitzsimmons
contract
his services.’
implied
every
Olinger Mortuary
536-537].)”
Ass’n.
In attention, however, all of the reported cases called to our relatives who were in permitted to recover for negligence conduct of funeral and/or related were sеrvices aware that the services were being performed, and were persons for whose benefit the under defendants had taken provide Recognition services. that it is foreseeable that close of the relatives deceased suffer severe emotional distress as a result of in negligence in manner which the of their decedent handled corpse were no case which who identify persons was that context. Plaintiffs and the aware the death their close relative contemporaneously not of both were be have been nature of the funeral-related services that performed held be victims the conduct of those services. negligence foreseeable therefore, potential plain- with that the agree, We defendants’ observation the Court Appeal who could under the decision of tiffs seek were who persons limited. Under that court’s decision appropriately were per- infants or at the time the funeral-related services even unborn formed, were either the death or nature others who unaware of were on completed could sue after the services performed, long services be the remains. It would learning of an impropriety disposition the close relatives for among unreasonable to be persons to consider those liability to impose whom the services were and to performed, funeral-related the defend- them defendants. are not for whose benefit upon They They owed to them. ants services and thus no duty undertook to perform *26 in the com- are not victims model alleged foreseeable of the misconduct plaint. foreseeable, however, are aware funeral-
It is that close relatives who that undertaken, or want related who are unable to do not services are to be but cremation, or to observe the manner which remains are for burial prepared remains, may do the decedent’s and thus not observe mistreatment of their remains the decedent’s learning suffer serious emotional distress on have been mistreated.
2. Moral blame. Here, the conduct of the defend crematory there is no but that question ants, and that are to alleged that of the and Carolina defendants have known have the defendants were or should known that misconduct, engaging in Defendants outrageous reprehensible. and as limit the statutory right concede much. seek to They liability on thе holders or those who contract for funeral-related services basis recognizes of the state of those policy only rights persons. remains, We human and disagree. by Provision statute for of disposal 7100, 7151), (§§ duties and of imposition recognition priority does not legislative policy reflect intent or section protect only holder from the result contracting party or emotional trauma that may from mistreatment or desecration of human scheme remains. statutory which to orderly process by proper disposi- establishes an ensure that only is made remains.24 tion of human ethical, policy respecting religious,
Other statutes reflect a having of close relatives others an interest concerns that the is assuring disposition digni- of human remains accomplished significance fied and manner. Of section 7054.7 respectful particular holder, which absent consent both prohibits, statutory right multiple cremations of cremated remains. Provision consent commingling demonstrates that the state has interest itself in preventing multiple no commingling evidently cremations or of cremated remains. prohibition exists out of for the of the relatives. surviving sensibilities respect if
Section 7152 limits anatomical it is known that the decedent “was gifts church, sect, a member of a which relies religion, solely denomination upon prayer religious for the or which tenets that healing disease has would be violated human thereof disposition body parts . . .” Again, . with religious regard beliefs policy respecting disposition of human remains is manifest.
Similar
that the
merit
recognition
sensibilities
all survivors
protection
found in other legislation. Section 7050.5
desecration of human
prohibits
remains,
buried
and makes
special
of Native
provision
proper disposition
American remains discovered during
Legislature’s
an excavation. The
find-
ings include express recognition of
American
regarding
Native
“concerns
*27
need
for
(Stats.
sensitive treatment and
of such remains.
disposition”
1492, 1,
(2)
ch.
p.
County
Angeles (1983)
subd.
5778. Cf. Bock v.
§
Los
of
Section 8115 cities and counties permits to establish standards governing ensure, alia, in interment order to inter “decent and treatment of respectful remains,” human and section 8101 interference with en- prohibits in gaged funeral services or interments. dead, remains, 24The statutory duty bury to right the to dispositiоn and control the of evolved a from law obligation common to imposed right every person ensure the of to “a decent Christian compel burial.” to dispose body the next of kin to of is now an sanitation,
exercise of the police power having public its both basis in health and and the interest of the state to avoid the expense and supervision burying involvement of aban (Comment, Property—Nature doned dead. in Dead Burial Rights Bodies—Right of of 435, 438.) So.Cal.L.Rev. This history support does not the assumption inherent in the Justice opinion of Kennard that Legislature had in mind the likelihood of designated emotional distress when it the order priority. of clearly policy giv- this state transgressed conduct expressed Defendants’ to, and on of fiineral-related services providers ing recognition imposing that decedents their survivors to of both and duty respect, expectations treatment. dignified appropriate will be accorded remains alleged is consis- type of civil for misconduct Imposition liability conduct, to and with tent with the of moral blame attached that degree a similar nature. deterring future harm of goal consequences community. to the 3. Burden seek liable to the who holding plaintiffs Defendants contend that them would, which impose in this case would an intolerable burden turn, availability and/or decreasing public by result detriment to the cost of funeral-related services. increasing were those relatives who We to close disagree. Limiting plaintiffs whom the services being aware the services were for performed that neg- were reduces defendants’ performed potential liability significantly and intentional nature egregious inflicted emotional distress. ligently that does not threaten liability the conduct at issue suggests imposing they over which continuing with future or for conduct liability defendants have no inflicted distress exists negligently control. Liability emotional distress to only for those acts would cause serious foreseeably victims to While the intentional nature foreseeable whom is owed. duty involved not be available as suggests conduct insurance means avoiding which to the cost defendants defray expense, similar misconduct the future is minimal.25 preventing No be shielded from the conse- suggests that defendants should policy these refusing of their conduct quences recognize direct recover for the severe emotional distress have suffered as a *28 result of defendants’ misconduct. true, claim, 25It sociеty by regulate as defendants that other has created methods which may who be provide conduct of funeral-related services. Administrative sanctions imposed by licensing and the agencies, the Board of Funeral Directors and Embalmers Board, Code, 7606, 7686, Cemetery (Bus. penalties imposed. and criminal be & Prof. §§ 9725-9737, 9748, 9749.5, 9789.) The by suggest availability duration and extent of misconduct alleged alternative means which has not and is by type alleged to deter misconduct of the here been unlikely adequate legislative to be an no Additionally, suggestion deterrent. there is intent has, hand, extinguish Legislature
to limit or civil on the liability for such conduct. The other 7155.5.) (See, e.g., doing, established appropriate. such limits where deemed In so § Legislature expressly recognized approved has implicitly liability. and civil Disproportionate
4. culpability. Chusa, Defendants that if argue Thing and rule of v. La reasoning 644, supra, 667-668, Cal.3d Superior Ochoa v. Court 159, 165, 1], Cal.3d footnote 6 703 P.2d limiting for recovery infliction of emotional distress to those who contem- poraneously observe both the negligent injury act and the it causes is not to the applied claims of these then will plaintiffs, liability suffer out of all proportion to their culpability.26
Those cases did distinguish whose emotional distress was engendered by serious witnessing injury to a close relative from one who suffered emotional distress on learning injury from another person. defendants those cases had no to the preexisting duty plaintiff, however. Plaintiffs here do not seek relief on the basis of witnessing another, injury but for caused the breach of a injury duty an owed to each directly plaintiff.
The Thing v. La Chusa 728) limitation on Legg (supra, Dillon v. 68 Cal.2d Moreover, recovery is not appropriate that reason. because misconduct of the type alleged here—mistreatment of human remains aby crematory— while distress, ever, likely to cause severe emotional if rarely, would take victims, within the place immediate and view the presence foreseeable providers of funeral-related services would liability injuries avoid caused by their outrageous conduct if a similar limitation were No applied. public policy supports immunity defendants seek.
Defendants’ attempt analogize the emotional distress injuries alleged Chusa, here to that in issue in Thing v. supra, La and Ochoa Superior Court, supra, 39 Cal.3d also fails for In Thing other reasons. v. La Chusa, supra, we restricted recovery to close are relatives who percipient witnesses to the negligent injury of tortfeasor’s immediate victim order to avoid unlimited liability out of all to the proportion culpability of actor, the negligent recognition that the witness percipient usually suffers an emotional impact beyond that suffered whenever one learns from another of the death Chusa, injury a loved one. (Thing v. La Here, contrast, Cal.3d the emotional injury is suffered by persons for whom the service, defendants have undertaken to provide very purpose of which is to alleviate existing avoid future emotional distress arising from death. The concerns which justified the restrictions that defendants’ urge us to extend to this case are not present. potential *29 26Because the crematory conduct here was intentional and easily by can be avoided all of defendants, the classes of we do not share the view that likely funeral-related costs will rise if plaintiffs these permitted are to recover. a service. performed are limited to those for whom defendants plaintiffs conduct, it defendants’ to their and liability proportion is not out potential could be plaintiffs not based on the emotional distress simply type one. as a result of the death of a loved anticipated to suffer Thus, they for emotional distress these victims to recover permitting Chusa, threaten, as v. La unlimited Thing suffer does not was the case and outrageous that is Intentional liability negligent. conduct simply defendants, and on of the of which conduct the part known, knew The class of alleged. Carolina defendants or should have we limited in number since it encom- here is potential plaintiffs approve of the close were aware both death only those relatives who passes that were to be one the nature of funeral-related services loved and liable, fear, will as they on their behalf. Defendants not be performed occurred, who had no knowl- not when the yet born misconduct that had the mistreatment of edge they their relative died until learned of who are upset by remains. will not be members They liable to other arranged. Nor is type contracting party services which the purported liability number of Defendants’ potential plaintiffs significant. 16,000 a factor from arising the relatives of more than decedents is not Rather, it is a of the failure to narrow the class of factor plaintiffs. potential number of decedents whose mistreated. allegedly remains defendants and Mortuary Crematory
C. Causation: Connection Between Conduct of Injury. Defendants
Our that direct victims defend- standing conclusion have as plaintiffs claim ants’ misconduct does not that plain- resolve that defendants’ part allege tiffs lack which emo- standing, only observe that We tional caused of defendants’ misconduct. distress media reports consider this of defendants’ as one aspect argument asserting to state a it does not facts complaint allege fails cause of action because sufficient the breach of the plaintiffs’ injury to establish caused duty owed to plaintiffs.
A defendant seeking to recover from plaintiff must and the allege a causal the negligence plaintiff’s connection between (Dunn 1029].) Dufficy (1924) A injury. 194 Cal. P. plaintiff . “must a causal . . and the allege negligence connection between he suffered. from the injury Ordinarily that is accomplished by implication (See 4 juxtaposition allegations wrongful conduct harm. Witkin, 561-566, [(3d 600-606.) 1985)] Procedure Pleading, pp. Cal. ed. §§ However, where the do naturally facts of pleaded negligence injury rise give to an inference of facts plead specific causation must *30 (Blain an inference the caused the v. Doctor’s Co. affording one others.” 250].) Cal.App.3d introduced these the trial court as a “stand- Although by into proceedings trial ing” question, standing court did so on a that theory plaintiffs’ recover from defendants have suffered turns injuries they emotional on whether all of the individual and the class members have plaintiffs be able to state a of defendants. To do so alleged may against cause action must facts to that As did the Court of they allege establish causal connection. therefore, if a Appeal, by we consider the issue as it had been raised demurrer to the complaint.
We agree with the defendants that media or other secondhand about events are basis for reports psychologically devastating not sufficient who are imposition liability emotional distress suffered by persons upset thereby. Damages be for an from only injury resulting recovered defendant’s breach duty owed to the here was to plaintiff. duty provide treatment the remains of the respectful dignified plaintiffs’ particular decedents. Media are reports general of misconduct pattern sufficient, themselves, and of that establish defendants’ misconduct Thus, included of the remains of each an mishandling decedent. plaintiff’s that a allegation suffered plаintiff emotional distress on of that learning pattern of misconduct does not allege injury duty caused a breach of owed to the plaintiffs. however,
Plaintiffs allege, that learned from the media that they reports the remains of “their” decedents had been treated. The improperly ability each plaintiff to either prove that at the time the learned misconduct he or she knew or had substantial reason to believe that the misconduct,27 decedent was a victim of defendants’ or that the alleged continuing emotional distress each plaintiff suffers is based on knowledge that the mishandled, decedent’s remains have been is a that is not question relevant at this stage of the proceedings. The whether the question only complaint alleges a sufficiently direct causation between defendants’ con- duct and the emotional distress suffered We conclude that it plaintiffs. does.
We are not persuaded by defendants’ argument permitting recovery this case will create tort for the liability impact reports of 27Counsel for argument asserted at oral during discovery plaintiffs have obtained evidence that will enable them to identify many of the decedents whose remains were mishandled and that many plaintiffs suffer emotional distress because will never know whether their among decedent’s remains were those mishandled. Neither of these bases for emotional distress alleged in the complaint. permit Whether to further amendment allege evidence, emotional distress based newly on the inability discovered or the to ascertain decedent, the treatment given to a plaintiff’s is a matter within the discretion of the trial court. *31 news, and for conduct which events carried
disturbing evening on a direct If unable establish occurred are many years past. plaintiffs and the emotional dis causal connection between defendants’ misconduct A recover. who is plaintiff suffered then by plaintiffs, they may tress distress, emotional and that unable to establish that he or she suffered severe substantial certainty the emotional distress was caused a well-founded by mistreated, her were those among reportedly that his or decedent’s remains A that the remains of not recover concern may damages. generalized involved, of relative have out a media may arising report pattern been misconduct, direct that there be a is insufficient to satisfy requirement by connection between a defendant’s conduct and the suffered injury here injury, It element—that thе necessary does not plaintiff. supply distress, duty defendant’s to the emotional be caused a breach of the (See (1990) 217 Shiley Cal.App.3d Khan v. particular plaintiff. [266 Necker, 106]; (1918) 184 A.D. Stahl v. William Inc. hand, 733].) suggestions N.Y.S. On the other were we to accept defend Justice that to recover unless Kennard these be plaintiffs permitted mistreated, a among ants that their decedents’ remains were not those prove nothing could recover distress based on damages emotional more than a media that have involved the may plain of misconduct report tiff’s loved one.
The source of a misconduct which cannot be plaintiff’s knowledge of observed, do not and the time at which the was readily knowledge acquired, relief as the standing otherwise affect the to seek insofar plaintiff’s except go statute of limitations bar the action. These factors instead may claim reasonableness to have suffered severe plaintiff’s distress and thus the trier fact. We cannot as a present say issues for law, do, matter of as that belated discovery defendants would have us mistreatment of remains of a close relative cannot cause severe emo- tional distress. That suits be filed as to whom the some degree of claimed is unreasonable is not a basis for relief suffering denying (Dillon 736-739.) to all. Legg, supra, 68 Cal.2d V
Intentional Infliction of Emotional Distress There is merit defendants’ claim that the Court of erred Appeal that concluding because remains of mishandling plaintiffs’ decedents was intentional and all members and close outrageous, friends of the decedents could recover for emotional distress. The Court of reached that conclusion that defendants’ Appeal upon reasoning conduct the elements of the tort of intentional infliction of established emotional distress. however, does not complaint allege, any plaintiff present occurred,
when the misconduct defendants of them acted with any or that the intent of emotional distress to the causing knowledge *32 the conduct was certain to cause distress to substantially any particular plaintiff. essence of the that the conduct was allegations simply intentional, outrageous, was and was certain to cause extreme substantially emotional distress to relatives and close friends of deceased. The elements of the tort of intentional infliction of emotional “ ‘(1) distress are: extreme and conduct the defendant with the outrageous intention of causing, or reckless disregard probability causing, of of distress; (2) emotional the plaintiff’s suffering severe or extreme emotional distress; (3) actual and causation of the emotional distress proximate the defendant’s conduct. outrageous outrageous . . .’ Conduct to be must be so extreme as to exceed in all bounds of that tolerated a civilized usually 197, (Davidson community.” City (1982) v. Westminister 32 Cal.3d 209 252, Cal.Rptr. 894].) 649 P.2d The defendant have in engaged [185 must “conduct intended to inflict in injury engaged with realization (Id. will injury result.” at p.
It is not that the enough conduct be and outrageous. intentional It must be conduct directed at the plaintiff, occur presence plaintiff whom the defendant is aware.
Past decisions of this court have invariably that the defend- presupposed ant’s misconduct was directed to and intended to cause severe or or, extreme emotional distress to a particular individual when reckless disregard was theory that the defendant directed the recovery, conduct at, to, conscious In disregard threat individual. particular seminal case permitting even recovery absent manifestation of the physical 330, injury, State Rubbish (1952) etc. Assn. v. 38 Cal.2d 337 [240 Siliznoff 282], P.2d we observed that theretofore California had allowed recovery when “physical injury resulted from intentionally subjecting plaintiff There, course, serious mental distress.” of the defendant had agents intentionally caused the plaintiff to suffer extreme for the fright purpose of gaining business advantage of the particular plaintiff.
Similarly, (1979) v. J. C. Penney Co. Cal.3d Cervantez 579 [156 198, 975], 595 P.2d Cal.Rptr. which reckless was a disregard theory, misconduct was the arrest of the with he plaintiff knowledge that had not committed an offense or disregard of whether he In Agarwal had. v. Johnson (1979) 141, 58], Cal.3d 932 Cal.Rptr. 603 P.2d Anbro [160 Alcorn v. 88, 216], racial 468 P.2d (1970) Inc. Cal.3d 493
Engineering,
Cal.Rptr.
[86
Church
Community
Grace
Nally
were directed at the
In
v.
plaintiff.
epithets
948],
wrongful
in which a
(1988)
Davidson
City of
infliction
sought
for intentional
plaintiff
instructive. There the
who failed
on the conduct of
officers
police
emotional distress based
enter the
her when
an assault
suspect
intervene or
observed
protect
laundromat;
defendants
while the
had stabbed the
public
suspect
*33
intent
in the
of an
had the
surveillance. We held that
absence
premises under
conduct was
of
officers
the
their
injure
plaintiff,
on
the defendant
part
rise to
give
kind
not the
of extreme and
conduct
would
outrageous
(Id.
210.)
of
distress.
at p.
for intentional infliction
emotional
liability
at the
be
primarily
that the defendant’s conduct
directed
requirement
of emotional
distinguishes
is
which
intentional infliction
plaintiff
factor
this
from
We
injury.
explained
distress
infliction of such
negligent
There,
Court,
Superior
supra,
distinction
Ochoa v.
“Plaintiffs that a for intentional appear to assume cause of action same as that theory of emotional distress be established on the different. emotional The two torts are entirely infliction of distress. Witkin, (See (8th 1974) 4 and 548 seq. of Cal. Law ed. 233 et Summary § § et . . . seq.) must
“A cause of distress action for intentional infliction of emotional reckless and facts which is allege showing outrageous conduct intentional outside summarizing which is It has been said in bounds decency. rule ‘the discussing cases intentional of emotional distress that infliction which exceeding seems to have emerged liability that there is conduct especially nature which is decent of a society, all tolerated usually bounds cause, cause, kind.’ serious very mental distress calculated to and does Here, the plaintiffs did cause defendants’ conduct although [Citations.] distress, than rather negligently it evident that the defendants acted untold (Ochoa distress.” with the causing purpose Court, supra, Cal.3d at fn. Superior p. Ochoa, at
In directed primarily plaintiffs’ the defendants’ conduct was (39 172-173.) recovery In concluding decedent. Cal.3d at pp. we distress theory, available under an intentional infliction of emotional allowed, limited the extent had it has been recovery noted that to such been “ attack, ‘the extreme violent where there is some especial most cases of ” Accord, (Id. Joseph Coon v. fright likelihood of or shock.’ at fn. 5. p. 873].) Cal.App.3d theory on an intentional infliction of emotional distress Recovery based on reckless in the funeral-related services conduct has been allowed al., Torts, 621-624, (See 2 context. et The Law of 9.4 at Harper pp. § note, However, cited.) and cases as Professors Prosser and Keeton the cases which describe the tort as intentional seek mishandling corpse actually protect feelings of the survivors. Therefore tort is personal distress, categorized as intentional properly infliction of emotional presupposes action directed at the or undertaken with knowledge *34 the (Prosser likelihood that the will & plaintiff suffer emotional distress. Keeton, Torts, supra, 60-63.) at These the pp. acknowledge authors problems associated with that directed at the permitting recovery for action is not plaintiff or undertaken with harm the knowledge of the likelihood of to the plaintiff, noting doctrine of transferred intent is this inappropriate context. They suggest that to the action must be directed to justify recovery the and if plaintiff, reckless conduct is the the is recovery, plaintiff basis for at usually present the time of the and the defendant to by conduct is known also, Prosser, 40, (See be present. (1956) 44 Outrage Insult and Cal.L.Rev. 56-59.)
We “The law agree. limits claims of infliction of intentional emotional distress to egregious plaintiff conduct toward caused defend proximate!y (Miller 1463, ant.” v. Broadcasting (1986) National Co. 187 Cal.App.3d 1489 668, added, Cal.Rptr. 69 A.L.R.4th original [232 Italics italics omit 1027]. ted.) The only to this rule is that when the defendant exception recognized is aware, but acts with reckless and the disregard, probabili plaintiff his her tythat conduct will cause severe emotional distress to that plaint 625, (Ledger Tippitt (1985) iff.28 v. 164 Cal.App.3d Cal.Rptr. 640-642 [210 otherwise, 28To the extent that it holds Delia S. v. Cal.App.3d Torres 787], 483-484 is disapproved. [184 910].) 814]; Vallelunga (1959) P.2d Taylor Cal.App.2d the theory recovery, of interests is of disregard Where reckless the plaintiff’s conduct occurs outrageous at the time the of presence which, of culpability element a establishing higher degree as the recognized turn, group of broader of justifies recovery greater by„a (See distress theory. a infliction of emotional than allowed on Torts, com. g.) Rest.2d § of here conduct of alleged any
Plaintiffs have not that the them, to them at calculated cause defendants was directed primarily distress, of their and with knowledge presence severe emotional was done We emotional injury. a would suffer severe certainty substantial conclude, therefore, establish that any that the does not complaint model infliction standing for intentional plaintiffs has to sue however, whether to proceeding, this is a distress. Because coordination of the trial court. left to the discretion further amendment should be permit VI
Devolution holder, that, right held death statutory Court of on the Appeal remains devolves disposition pursuant section 7100 to control the power Lamb established that section. Defendants Laurieanne priorities to Sconce, Sconce, holding Funeral that this suggest the Lamb Home Jerry their if read to sue for ambiguous persons succession of permit chain ending plaintiffs. individual emotional distress would create never legislative intent right devolves is consistent with holding that having obligation dispose that there both the person be human Our that relatives other than statutory remains. conclusion sue, who were aware of holder have those standing only but time the services were funeral-related services to be at the performed *35 performed standing, any potential ambiguity. have eliminates
VII
Disposition direct Court of to judgment Appeal superior modified court to order conform its on to sue reflect the views standing expressed to herein.
Lucas, J., Panelli, J., J., J.,* A.), (Paul C. and Tlirner concurred. George, Justice, District, Five, *Presiding Appeal, Appellate assigned by Court of Second Division Chairperson of the Judicial Council. MOSK, Concurring that those majority with the Dissenting. I agree J. close members who were aware of both the decedent’s death and the nature funeral of the services to be state a claim for performed may negligent infliction emotional I distress.1 also that the control the agree power to disposition of remains according devolves to the established priorities section Health and Safety Code. however,
I do agree, inflic- may no sue for intentional plaintiffs tion of (IIED) emotional distress admittedly outrageous because the conduct them, was not directed at did It primarily nor witness it. they paradoxical that the find majority defendants liable but not intentional latter, conduct. The more being should render the reprehensible, perpetrators liable to a greater rather than a lesser extent.
The majority assert that defendants to the acts require perform plaintiffs’ ensures the presence high degree culpability necessary justify view, the greater damages allowed in an IIED In if case. my alleged acts true, are found to be defendants are highly regardless of whether culpable plaintiffs witnessed the mutilation. I would allow the trier of fact to consider the issue of IIED.
Further, I would not limit the class of in IIED cases to blood relations. The issue of whether a suffered person severe distress is properly that, left to the trier law, of fact. We should not rule as a matter of decedent’s estranged sibling have suffered may but distress not a decedent’s close and longtime business partner.
I would allow plaintiffs to proceed on the IIED because defendants’ theory alleged conduct IIED reckless. may be shown in three subjec- ways: tive distress, intention to cause emotional a substantial that such certainty result, distress would or reckless behavior leading to emotional distress. The ante, majority (maj. opn., 906) at p. deny plaintiffs a cause of action for IIED because did they not allege that defendants’ conduct “was directed primarily them, at was calculated distress, them cause severe emotional or was done with knowledge of their presence of a substantial certainty would suffer severe emotional injury.”
Although defendants have been motivated by profit rather than aby subjective desire to distress these the trier plaintiffs, of fact could still hold defendants liable on a reckless conduct theory. Recklessness bemay found *36 course, 1Of exceptions general to this may rule family arise. A close member who is out of the country at the timé of the decedent’s death or who hospital strong enough is in the and not view, to hear the news may, in my be included in plaintiff class. in an character of known or obvious disregard from acts “of unreasonable a make it that would follow.” great highly probable risk that was so as to harm Keeton, 34, 1984) 213.) IIED (Prosser (5th & The of Torts ed. may Law p. § (NIED) infliction of emotional distress distinguished be from negli- higher simple a of fault than degree because recklessness requires gence. ante, IIED be 905)
The at that majority acknowledge (maj. p. opn., that the of the likelihood knowledge from conduct undertaken with shown will If defendants in this emotionally suffer emotional distress. plaintiff remains, and comingled bodies charged occupation intentionally mutilated cause decedents’ loved necessarily realized that their would they conduct (See Cemetery, Inc. severe distress^ v. Lincoln ones emotional Golston 700, 1978) 573 S.W.2d (Mo.Ct.App. are, in that IIED this limits seek to on tort of majority place
context, unjustified. that be at the scene require present To plaintiffs indeed in which a unrealistic. will a rare case outrageous conduct is It be in the the grieving funeral home a body presence mutilates decedent’s effectively thus majority the mutilated to them. displays body involving reprehensible in this plaintiff’s type limit a recourse cases Further, to the of NIED. the majority’s requirement conduct lesser tort makes the direct at consciously outrageous defendants conduct intent” “subjective prong. “recklessness” from the prong indistinguishable for IIED under similar Other states’ have found of action courts cause Gardens, Inc. Highland Memory circumstances. Whitehair v. example, For 438,440 383], (W.Va. 1985) held that the the court S.E.2d A.L.R.4th [53 could state cause of when the defendant mishandled action sister, of her of its during cemetery. bodies two aunts and cousin relocation In Scarpaci County (1980) v. Wis.2d 663 N.W.2d Milwaukee [292 829], that the 18 A.L.R.4th the court held that who alleged parents a claim county an their son state wrongfully performed on could autopsy Carney intentional interference with the their child. And v. bury Knollwood N.E.2d Cemetery App.3d Ass’n 33 Ohio 435], the court learned broadcast held that the who a television plaintiffs, disturbed, that the a claim grave their ancestor had could state been IIED.
A Florida in which the court cases appellate explained recently defendant’s third conduct is directed to a outrageous person, distress felt victim’s close relatives on acts learning actionable unless directed at observed conduct and conduct was them; however, dead bod- involving considerations” cases “unique apply (Williams (Fla. ies pictures City dead bodies. Dist. Minneola *37 1991) Ct. App. 694.) 575 So.2d held that the mother and court sister aof decedent outrageous could state a cause action for infliction of emotional distress by reckless conduct on the defendants’ exhibition based a videotape decedent’s even were not at autopsy, though they present reasoned, It display. “One with outrageously regard who behaves to of a dead pictures can be know that severe body presumed to will distress be inflicted on were related thereby closely those who to deceased, should those survivors become aware tort-feasor’s behav- (Id. 693.) ior.” at p.
The cases cited
do
majority
to
situation.
apply
present
Ochoa v. Superior
Court
As the majority public limit policy considerations bystander to recover damages for emotional distress suffered as a result of witnessing negligent conduct that causes a third physical injury to person: “If any and all bystanders who witnessed the injury-causing event were distress, permitted recover for ensuing emotional the defendant’s liability could be out ante, of all proportion to the degree of fault.” (Maj. at opn., p. scope not, liability intentional infliction of emotional distress is
however, limited by the same public policy dictates. As the Court of Appeal case, stated in this “an intentional wrongdoer is liable for a broad range of the effects of intentional acts. . . . Avoidance of out of all liability propor- tion ato defendant’s negligence is not a concern when an intentional tort is As alleged. we seek society, punish intentional wrongdoer and deter such conduct by others.”
Further, I can find no public policy reason to limit the class of potential plaintiffs who IIED may sue for A family members. longtime business associate should TTF.D be allowed to present case for after a preliminary showing that he or she had a close relationship with the decedent. Proximate causation such principles as do not foreseeability an belong analysis course, intentional tort. Of each will have to elements all the prove *38 to so permitted I that should be they of his or her case. would hold merely attempt. that with the KENNARD, majority Concurring Dissenting. I agree J. action for intentional at issue does not state a cause of complaint right I who have a persons
infliction emotional distress. also that agree of remains, recover and who seek to of a decedent’s disposition control mis- or intentional negligent distress caused damages by for emotional remains, witnessed of the need not or handling allege prove mishandling. however, recover may
I the class of who do not agree, mishandling of by caused negligently for emotional distress damages, were aware members who family remains includes all of the decedent’s close holding That were being performed. that funeral or services on tort actions this court limits disregards imposing decisions of the class of the conclusion that Those decisions intangible injuries. compel or damages distress may who recover emotional a persons having remains is limited to mishandling intentional the decedent’s remains and those members of control the disposition it or its observing mishandling by immediate who learned of the family direct consequences. “A to establish
I with who is unable disagree plaintiff also this statement: substantial . . . that the emotional distress was caused a well-founded or her decedent’s remains were those among reportedly that his certainty ante, mistreated, Under (Maj. p. may damages.” opn., not recover case, unjustly prevent facts of this such a burden could particular imposing I a recover may would hold that recovery by many plaintiffs. plaintiff her dece- that his or damages by knowledge for emotional distress caused were cremation during period dent’s remains entrusted to defendants for entrusted to time when the defendants mishandled remains so frequently them, the plaintiff’s unless the defendants can that the remains of prove decedent were not mishandled.
I When a mishandles a intentionally or crematory negligently remains, disposition decedent’s to control the persons having right those distress caused the remains sue tort and recover for mental in California and This mishandling. recovery recognized (Allen (1980) other state. v. Jones virtually every Cal.App.3d Torts, 868; Annot., 445]; Under- Rest.2d Civil Liability § Burial, taker in Body Connection With Transportation, Safeguarding is not at issue here. existence 360.) right’s 53 A.L.R.4th are, first, learn of the must whether dispute main points order consequences immediate observing it or its mishandling by have no recover, and, second, friends who members or whether close *39 recover also may decedent’s remains legal right to control disposition related. these are points I shall damages. explain, mental distress As a tort brings distress is emotional injury When a whose plaintiff only to action, brought actions tort restrictions not impose imposed courts time, justified At courts harm. one for or financial damages physical recover (Sеe claims. of fraudulent restrictions the need to assertion prevent these 912, 72, 441 728, 735-739 P.2d (1968) Legg Cal.Rptr. Dillon v. 68 Cal.2d [69 explana a different 1316].) given this court has recently, 29 A.L.R.3d More any distress to act cause emotional single negligent may tion. Because a be distress would unrestricted for emotional liability number of people, moral blame. and a defendant’s limitless disproportionate and goods increased for prices increased insurance and Through premiums services, burden of bear the enormous general ultimately would public taxes, the substan pay would also paying damages. Through public and enforce awards. tial cost of a to resolve providing system disputes 865, 644, (1989) 771 (Thing Cal.Rptr. v. La Chusa 48 Cal.3d 661-667 [257 814].) P.2d liability
These
led
circumscribe
carefully
considerations have
this court
Thus,
damages
recover
for
intangible injuries.
may
for
a
although
spouse
consortium,
child,
(See
not.
may
loss of
or unmarried cohabitant
parent,
254,
582];
(1988)
Elden v.
758 P.2d
Sheldon
To decide seeking whether to these or similar in an action apply limits mishandling distress for the negligent or intentional remains, decedents’ it is to examine helpful governing scheme statutory the disposition of a decedent’s remains. Code, (Health 7100),
Under the & one or more statutory scheme Saf. § family members of a decedent hold the to control disposition right, through decedent’s remains. holder or holders person another, may contract for funeral-related that are to the contrary services expectations wishes and of other close members. It hap- sometimes pens that decedent’s will example, differing have spouse parents, and, buried, whether if views on the remains should be cremated buried (See, whether should they be embalmed and where should buried. be 1103, 1113, Temple Sinai fn. 15 e.g., Kaplan Cal.App.3d 80].) Because the has the spouse statutory right, spouse’s directions must be followed. The even excludе the from spouse may parents the funeral services. The have no to be parents compensated any *40 distress a experience as result of of their child’s remains disposition If, hand, with the accordance directions.1 on the other the spouse’s parents wishes, procure disposition a of the remains the against spouse’s spouse may parents sue and the tortious interference with the mortuary for (Id. right to spouse’s disposition control of the remains. at p.
When a mortuary crematory or undertakes to funeral-related provide services, it assumes a to the duty person persons holding statutory or right of control to who for the behalf of the anyone contracts services on holder that a statutory right. Although generally it is foreseeable breach of this will duty family cause emotional distress to other members (and friends), to the also close this court warned that personal decedent’s has foreseeability of an injury adequate duty criterion which to define to avoid inflicting foreseeable intangible injuries. example, although For it is that a doctor’s negligent treatment of a will cause emotional distress patient to the patient’s family, this court has declined to that a doctor who recognize undertakes to treat a patient thereby duty assumes a to avoid emotional harm (See patient’s Marlene family. Psychiatric F. v. Medical Affiliated Clinic, Inc. 278].) Cal.3d P.2d 589-590 too, Here we should distinguish between those for whom or mortuary services, crematory undertakes to provide funeral-related and who therefore would entitled be the agreement, enforce and others who be affected by the manner which those services are but not be performed, who would entitled enforce the agreement. 1The statutory right holders of the could have defendants’ validly consented to all of the case, metals, alleged including acts in this harvesting organs, removing precious multiple cremation, commingling alleged of ashes. Defendants’ conduct case is tortious this only it was because done without consent. Had of the defendants obtained the consent
holders statutory rights, family other members right would have of action possessed no damages, for emotional distress no matter how deeply they might have been offended. or express violates of remains mishandling mortuary’s
Because a and enforce to establish who hold the those implied plan disposition, acts. mortuary’s wrongful direct victims of the are the disposition plan best, are, “bystander” third or party at members and friends Other victims. or crematory’s negligent mortuary
I victims of a or consider first the direct a legal right When a possessing intentional of remains. mishandling plaintiff or decedent’s remains sues of a to control disposition right, policy with that intentional interference that the a requirement imposition concerns discussed above do not support conse- act or its wrongful either the have been to observe present quences.
First, the statutory minimal. Under of fraudulent claims is danger Code, of a 7100), to control (Health disposition & Saf. scheme § surviving nearest decedent’s belongs spouse decedent’s remains to the to result substantial mishandling likely relation. The is so corpse the situation relations that mental distress to a decedent’s or close spouse Whatever additional genuine. that the claim is guarantee its own provides is not provide would genuineness requirement assurance of a “presence” needed.
Second, right disposition the a to control having legal class of persons There- defined and limited statute and contract. by a decedent’s remains is fore, out indefinitely multiplied, a will not be liability defendant’s limited, resulting the of all fault. Because the class is proportion plaintiff to for purveyors societal costs—in the form of increased insurance premiums services, services, and those of funeral and cremation increased for prices unreasonably the not be system increased costs to court taxpayers—will unacceptably high. tantamount to Finally, grant a would be imposing “presence” requirement mishandling by an civil ing immunity liability many from for forms liability their nature occur out of the view of the relatives. Civil not bereaved encouraging it as a whole only injuries, society by also serves compensates standards of care avoid has a interest high injuries. Society compelling to dead exercise assuring that those who are entrusted with the bodies of our Quesada (See Improvement (1989) the Co. 213 greatest of care. v. Oak Hill 769].) Because it furthers this societal Cal.App.3d interest, an award means to necessary of tort “is a useful Jones, (Allen maintain the standards of the . . . .” profession the to 214.) having right or persons Because the Cal.App.3d person are the best position control remains disposition decedent’s interests, restricted by impos vindicate their should be society’s actions ing “presence” requirement.
The balance of societal costs and benefits when must be reassessed plaintiff seeking recovery is one who has no legal control disposition of the decedent’s remains. close relatives or friends to Allowing recover makes the litigation more complex, increasing the burden on the courts and Each ultimately taxpayers. additional claimant multiplies defendants’ potential thus liability, leading ultimately to increased prices all purchasers of funeral services. Finally, allowing all close relatives to sue is not necessary deterrence: fear of suits by statutory right holders and contracting parties provides a sufficient incentive to ensure due care by purveyors of services. reasons,
For these third claims for party negligent or intentional mishan- dling of a decedent’s remains should be carefully circumscribed. They should not be barred however. As the comment entirely, to section 868 of the observes, Restatement Second of Torts it would be to bar incongruous decedent, recovery by close family member of the such as a daughter, who remains, witnessed mishandling of the while permitting recovery by member, widow, another family such as the decedent’s who did not observe but who mishandling the exclusive possessed right to control disposition Quesada Co., (See of the body. Improvement v. Oak Hill also supra, Cal.App.3d
Adapting this court requirements has on third claims imposed party situation, an I analogous would hold that a plaintiff who has no control a decedent’s remains recover for emotional distress occasioned negligent or intentional if the mishandling remains only (1) is a close family (as member of the decedent defined Court of and the Appeal majority); learns of the observ- mishandling by ing casket, it or its (the direct consequences wrong body an empty *42 remains, container forth); of cremated and so suffers serious emo- tional distress as a result.
The majority reaches a different It conclusion. treats all the decedent’s members, close family not just the holders and statutory right contracting parties, as the direct victims of an alleged negligent or intentional mishan- remains, dling and it recognizes no class of third party victims. The offers majority various reasons for its conclusions. None is persuasive. The first majority argues that should not recovery be limited to statutory right holders and contracting parties because other members family may suffer greater emotional distress. This rejected court has arguments similar Thus, other cases. we have limited recovery for loss of consortium to spouses, even child, though a particular case a or unmarried parent, loss, cohabitant have may suffered greater arid we have held that only close by negligent distress occasioned members for emotional may recover family greater suffer others though to a third even injury person, physical distress. emotional in Health and forth set that the order of priority asserts majority likelihood of of the indicator” 7100 is “not a reliable Code section
Safety ante, an constitutes This assertion (Maj. p. opn., emotional distress. Under section scheme. of the statutory attack on the wisdom unfounded remains, “unless decedent’s the disposition the to control right decedent,” following the the passes have been given by other directions children, surviving the child or surviving the the surviving spouse, order: kindred” who degrees the next persons or “the or parent parents, person decedent, This order administrator. inherit and the public would from the or persons as to the judgment person reflects a evidently legislative have control the disposition decedent would most chosen to likely remains, most the decedent was to whom and thus the person persons doubt, to the closest persons related. Without strongly intimately mishandling aby decedent will distressed severely be most Thus, scheme, those identify intended to although remains. statutory remains, mishandling of most to be distressed likely scheme as a I the statutory that function. would effectively performs accept closely individuals most rational method for the individual or determining mishan- by any to be affected likely related to the decedent and thus most of the decedent’s remains. dling duty assumes a next asserts that a majority members, having legal
all close and not to those merely assertion, the remains. To this disposition support control of the decedent’s the courts of other California courts and of majority looks decisions of jurisdictions. To majority’s holding.
Decisions of other do not jurisdictions support of action have that a cause contrary, recognized the courts of other states human remains is mishandling distress caused of those interference with a to control the disposition on premised “ case, remarked, ‘The remains. an earlier quoting As one court but are body, done to the dead injury recoverable . . . are not for *43 and control possession the undisturbed wrong trespass right on the . . . to the suffering mental and of body, by anguish the measured the of Inc. (Golston Cemetery, (Mo.Ct.App. . . . .’” v. Lincoln thereby occasioned 705, 700, added.)2 are to 1978) italics authorities following 573 S.W.2d Golston, common minor right was held decedent’s statutory by the the 2In sue, children, the permitted sister to on The court the decedent’s as well as the minor children. 916 (Alaska 1972) same effect: Burns v. Anchorage Chapel Funeral 495 P.2d
70,73 (“a claim relief
right
for
for
interference with the
to
wrongful
preserve
a dead body belongs
to the
or to the next of kin
exclusively
surviving spouse
decedent”);
Allinger
(1981)
of
v. Kell
102
798
N.W.2d
Mich.App.
[302
576,
law,
(“Under tort
recovery
579]
intentional
mutila
tion of a dead
is based
of the
of the
body
upon infringement
right
plaintiffs
mutilation,
to have the body delivered for
and interred
burial
without
other
than that present at the time of death.
Where a
has the
person
[Citation.]
to
a
right
bury
body,
actionable.”);
interference with that
is
right
generally
309,
(1940)
Sworski v. Simons
208 Minn.
N.W.
(recognizing
201 [293
311]
cause of action for interference with the
to the
of the
“legal right
possession
corpse
burial”);
McGilley
of
and
Galvin v.
purposes
preservation
Memo
588,
Chapels
1987)
rial
S.W.2d
a cause
(Mo.Ct.App.
(recognizing
746
591
of action for breach
“the
common law
of
of the
right
sepulchre—the
next of kin to
and decent
perform ceremonious
burial of
nearest
relative”);
(1988)
Strachan v. John F. Kennedy
Hospital
Memorial
109 N.J.
346,
523
A.2d
a tort cause of action for emotional
(recognizing
[538
350]
“
distress occasioned by infringement
‘the
the dead and
bury
”);
preserve
1962)
remains’
Baumann v. White (N.Y.Sup.Ct,Spec.Term
272,
234 N.Y.S.2d
273
that a cause of action for an undertak
(recognizing
er’s negligent
be
“the next
kin
preparation
body may
asserted
with
charged
undertaker);
its burial” and
those who
engaged
Thomp
Homes,
son v. Duncan
(1982)
Bros. Funeral
Inc.
917 The majority the majority. are similarly unhelpful California authorities duty a mortuary’s cites two cases only support proposition Mortuary v. Draper of the decedent. family care runs to all close members 396], awas (1982) 135 533 Superior Cal.Rptr. Court Cal.App.3d [185 and, as the the contracting party a who was both brought by plaintiff lawsuit husband, occasion to The court had no holder. statutory right decedent’s holders nor statutory right neither who were standing by persons discuss consid proposition A decision is not contracting parties. authority 250, 265, fn. (1987) 43 Cal.3d (People Myers ered in the v. court’s opinion. 264, 698]; Kelly Broadcasting 5 P.2d see also Brown Cal.Rptr. 729 708, 711, 406].) In P.2d Co. 48 Cal.3d 734-735 [257 Co., tiie Quesada Improvement supra, Cal.App.3d v. Oak Hill They remains. of the decedent’s family mishandling members witnessed I entitled as have “bystanders,” explained. were therefore to recover as seeks its foresee- Finally, majority justify by weighing conclusion blame, ability, community, disproportionate moral the burden on the is inconsistent with this court’s decisions. analysis prior culpability. it remains Certainly mishandling is foreseeable that the of a decedent’s (and will cause emotional distress to the decedent’s close members well) close Yet this court personal mishandling. friends as who learn of the has denied where distress is no less standing other cases emotional foreseeable. Parents who learn that their child has been disabled permanently in an automobile collision or as a result of a negligently performed surgical procedure have no to seek distress from the standing emotional person who caused the As court has negligently injury. explained,* this of the “foreseeability alone is not a useful or a injury ‘guideline’ meaningful restriction on scope [negligent NIED infliction Chusa, (Thing 663), action” v. La Cal.3d distress] “[e]ven if it is ‘foreseeable’ that other than related wit closely percipient distress, nesses suffer emotional this fact does not justify imposition of what threatens to become unlimited for emotional distress on a liability (id. 667). defendant whose conduct is at simply negligent” p. blame,
In weighing factor of moral proper focus is not on case, misconduct egregious alleged this but on the minimum particular only case cited majority permitted party statutory right who was neither holder Indeed, nor a contracting party to granted recover for the mistreatment of remains. the court standing common plaintiffs for the intentional mistreatment ancestor of the remains of their N.E .2d who had died more years (514 than 20 before 2 of the were bora. Nahra, opn. J.].) [conc. *45 for the requirements majority cause of action under consideration. As the observes, “the tort with which we are is negligence.” (Maj. opn., concerned ante, 884.) in decision this case will become the line” rule for p. “bright all similar actions negligence involving mortuary of provision I services. am crematory unable to conclude that is negligence significantly contexts, more in this than in blameworthy driving other such as the motor vehicle or the it surgical of For performance procedures. example, me, not obvious to although it is to the that commin- apparently majority, dead, gling ashes of the at the risk of emotional to the decedents’ distress survivors, driving more than at significantly blameworthy high speed intoxicated, while at the risk of death to other users. highway will a on the majority’s holding impose community substantial burden in the higher form of costs for services. As this in court stated a related context: “We cannot social burden of ignore providing damages for loss parental merely of consortium because such awards comes from the defendant or money pay initially ‘negligent’ his insurer. the burden of of awards for loss of Realistically payment [or her] consortium must be borne in increased insurance public generally or, otherwise, in premiums the enhanced that accrues from the danger greater number people who choose to without insurance. We must go any take also into account the cost of administration determine system awards; consortium since pay virtually every injury parent serious would a claim engender for loss of consortium on behalf of each of his or her children, the еxpense settling litigating such claims would be sizable.” Airlines, Inc., (Borer 447.) v. American supra, 19 Cal.3d Borer, In nine children asserted claims for loss of consortium. parental action, This in court commented: “Even context of a consolidated nine assertion of causes of action for the children addition to independent the father’s claim for loss of consortium and the mother’s suit for ordinary tort demonstrates the damages, extent to which recognition plaintiffs’ asserted will cause action the tort the defendant.” multiply liability of Airlines, Inc., (Borer American Cal.3d The majority’s case, in this all holding permitting close relatives (including parents, sisters, brothers, children, and grandchildren) to dis- recover of, tress occasioned by learning without mishan- witnessing, remains, of a decedent’s dling will far what the multiply liability beyond If, (and this proposed rejected) court Borer. example, decedent had nine (as Borer) children nine and each child turn had children, the class of children and would number grandchildren ninety plaintiffs, each an possessing cause of action for a independent single negligent act. that has caused
This poses problem disproportionate culpability4 *46 “The members family cases: number of standing this court to restrict past could unreason- damages single who on the incident might seek basis Chusa, supra, La 48 Cal.3d (Thing the defendant’s burden.” ably enlarge 644, 665.) here in the “bystander” The is no less than problem significant and loss-of-consortium contexts. view,
In light a of the relevant considerations my weighing policy the for the this court’s decisions conclusion that tort of past compels the based on the of a decedent’s remains class of negligence mishandling direct victims be defined a to control possessing legal should as those remains, and that class of direct of the decedent’s outside this disposition victims the similar to those recovery subject should be to limitations imposed court for occasioned by recovery by this on emotional distress to a third physical injury person.
II hand, What the with it the After majority gives one takes with other. the the dece- opening prospect to all close members of recovery dents, the majority shuts door those by restricting recovery plaintiffs who can their show that emotional was “a well-founded distress caused substantial certainty” that their decedents’ re- “among remains were those ante, 902.) mistreated.”5 portedly (Maj. thus opn., p. imposed by burden the majority may preclude recovery all who many plaintiffs would otherwise Plaintiffs will qualify. be forced to on defendants’ records rely determine which bodies were If mishandled. those are records inadequate (and it unlikely seems crematory defendants records their kept detailing misdeeds), many plaintiffs will never be able to determine whether the remains of their decedents were mistreated. situation,
In this I would rule apply the that when a establishes plaintiff tortious conduct aby defendant under making circumstances it virtually 4The majority’s discussion of this a classic example reasoning. factor is of circular majority first states it will duty consider various factors to determine whether a exists. When it reaches the of disproportionate factor culpability, distinguishes “bystander” it cases on ground plaintiffs that here injury seek relief “for an caused a duty the breach of owed ante, directly 899.) to each plaintiff.” (Maj. opn., But p. for those who are neither statutory right contracting holders nor parties, and to whom the owe defendants therefore no statutory law, duty, only or contractual potential duty source of is tort existence of a duty very in tort is point at issue. majority’s 5The use of the word “reportedly” Surely in this statement puzzling. majority does that plaintiff not mean a be would entitled to recover from upon proof defendants reported that the had plaintiff’s media mistreatment remains, decedent’s even though presented report defendants proof that the false. causation, shifts to the the burden for the impossible plaintiff prove (See Palm a v. Lone Hotel defendant to establish lack of causation. Haft 465].) P.2d Accord- 3 Cal.3d 772-775 [91 recover I would hold ingly, her decedent remains of were caused that the his by knowledge distress time when the defendants during to the for cremation period entrusted them, unless the remains so entrusted to defendants mishandled frequently were decedent plaintiff’s defendants can the remains prove nothing on more holding mishandled. This would not “based permit recovery ante, Rather, it (Maj. opn., p. than media report misconduct.” *47 in a engaged actually would defendants require prove the time that the human pattern mistreating during remains practice Unlike to them. remains of the decedent were entrusted plaintiff’s defendants, however, allocate to the not holding, it would majority’s were remains were or not particular the task of which plaintiff, establishing pattern practice. mistreated of the established during period rehearing January denied 1992. Petitioners’ application Mosk, J., Kennard, J., Arabian, J., were of did therein. participate granted. that the should be opinion application