RAASHAN COLEY, Plaintiff-Appellant, v. BRADSHAW & RANGE FUNERAL HOME, P.C., Defendant-Appellee.
No. 2-19-0627
Appellate Court of Illinois, Second District
December 21, 2020
2020 IL App (2d) 190627
PRESIDING JUSTICE BRIDGES dеlivered the judgment of the court, with opinion. Justices Jorgensen and Brennan concurred in the judgment and opinion.
Appeal from the Circuit Court of Lake County, No. 17-L-480; the Hon. David P. Brodsky, Judge, presiding.
Timothy D. McMahon, J. Jason Coggins, and Michael D. Barnes, of Wiedner & McAuliffe, Ltd., of Chicago, for appellee.
¶ 1 Plaintiff, Raashan Coley (Coley), proceeding pro se, appeals the trial court‘s dismissal of his claim for negligent interference with his right to the possession of his deceased daughter‘s remains. Defendant, Bradshaw & Range Funeral Home, P.C. (Bradshaw), had moved to dismiss the claim, pursuant to
I. BACKGROUND
¶ 3 Raashanai J. Coley (Raashanai) died intestate on September 5, 2014, after being struck in the stomach by her mother, Nicholette Lawrence, following a period of prolonged neglect and abuse. Bradshaw was the funeral establishment that handled Raashanai‘s remains and facilitated their transfer to the crematory. At the instruction of her maternal grandfather, Carlton North, Raashanai‘s body was cremated on September 26, 2014. The cremation was performed by Mt. Olivet Memorial Park Ltd. (Mt. Olivet). Coley did not learn of his daughter‘s death and cremation until October 9, 2014. Coley maintains that, as next of kin, he had the right to control the disposition of his daughter‘s remains.
¶ 4 On May 1, 2015, Coley filed in the circuit court of Lake County his first complaint, against Bradshaw and Mt. Olivet. Coley voluntarily dismissed this action on October 4, 2016, and refiled his case on June 28, 2017. On May 10, 2018, Coley filed an amended complaint, against Bradshaw only, alleging intentional infliction of emotional distress (count I), willful and wanton/reckless interference with the right to possess and preserve the body of the minor decedent (count II), and negligent interference with the right of the parent to possess and preserve the body of the minor decedent (count III).
¶ 5 The pertinent allegations of count III of Coley‘s amended complaint were as follows: (1) apart from Lawrence, who was charged with Raashanai‘s murder, Coley was Raashanai‘s only adult heir and next of kin; (2) Bradshaw did not attempt to contact Coley regarding the disposition of Raashanai‘s remains; (3) Bradshaw knew or should have known that Lawrence was charged with the murder of Raashanai and thus not entitled to control the disposition of Raashanai‘s remains; (4) Bradshaw had a duty not to interfere with Coley‘s right to possess his daughter‘s remains; (5) Bradshaw breached that duty when it failed to obtain Coley‘s authorization for the cremation, secured and transmitted invalid authorization forms for the cremation, and transported or allowed the transportation of Raashanai‘s remains for cremation; and (6) these breaches caused Coley damages in the form of severe emotional distress, mental suffering, humiliation, and anguish.
¶ 6 Bradshaw moved to dismiss count III of Coley‘s amended complaint, pursuant to
¶ 7 Bradshaw‘s motion was supported by an affidavit from North, in which he stated that he was Raashanai‘s maternal grandfather and that he resided in Oregon. He said that he first learned of Raashanai‘s death on September 6, 2014. He learned from the Lake County Coroner‘s Office that the coroner was holding Raashanai‘s body and that an autopsy had been performed. Afterward, the body was placed in the coroner‘s morgue while the coroner waited for next of kin to claim the remains. Raashanai‘s body remained unclaimed at the morgue for at least three weeks, after which the coroner‘s office informed North that it would release Raashanai‘s remains to him.
¶ 8 The coroner‘s office recommended Bradshaw to North. North contacted Bradshaw‘s funeral director, Richard Bradshaw, who asked about Coley‘s whereabouts. North informed Richard Bradshaw that Coley had been incarcerated in various prisons for much of Raashanai‘s life, that it had been over a year since he had heard from Coley, and that he did not know where Coley or any of his immediate family lived or how to contact thеm. Richard Bradshaw informed North that, before Bradshaw would allow him to provide for the final disposition of Raashanai‘s body and for cremation, it would require a release from Lawrence transferring her rights to him. It was Lawrence‘s decision that Raashanai be cremated, and North agreed with her. North provided Bradshaw with the Release as well as the two Authorization Forms.
¶ 9 In response to Bradshaw‘s motion to dismiss, Coley argued that nothing in Illinois law gave a party the ability to transfer to another person his or her right to control a decedent‘s remains and, as such, the Relеase and the Authorization Forms were ineffective. Further, the Release itself was evidence that Bradshaw knew that Lawrence had been charged with Raashanai‘s murder and that it knew that Lawrence was disqualified from determining the disposition of the remains pursuant to
¶ 10 In reply, Bradshaw argued as follows. Coley failed to respond to North‘s affidavit with any counteraffidavit, and therefore the facts in North‘s affidavit must be taken as true. Further, even if the allegations in Coley‘s response were treated as true, that would not allow him to
¶ 11 The trial court granted Bradshaw‘s motion to dismiss count III. The case then proceeded to a jury trial on counts I and II, with the jury finding in favor of Bradshaw on both counts.
¶ 12 Coley filed a posttrial motion to set aside the verdict and for a new trial. The motion mostly focused on what evidence was admitted at trial, with a single paragraph arguing that the trial court erred in dismissing count III. The motion claimed that count III would have had a lower burden of proof than the other counts and would not have required a showing of willful or wanton conduct, but it otherwise contained nо explanation as to how the trial court erred. Coley‘s reply in support of his motion expanded somewhat on this point, arguing that the protections of section 45 did not apply because Bradshaw knew that Coley had the greater right to control the disposition of the remains and as such was not entitled to rely on North‘s representations.
¶ 13 Coley timely appealed.
II. ANALYSIS
A. Standard of Review
¶ 16 Coley argues that the trial court erred when it granted Bradshaw‘s
¶ 17 This appeal centers on whether
B. The Disposition of Remains Act
¶ 19
¶ 20
¶ 21 There has been no prior case that examines
“There shall be no liability for a cemetery organization, a business operating a crematory or columbarium or both, a funeral director or an embalmer, or a funeral establishment that carries out the written directions of a decedent or the directions of any person who represents that the person is entitled to control the disposition of the decedent‘s remains. Nothing herein shall be intended or construed to reduce or eliminate liability for the gross negligence or willful acts of any cemetery organization, business operating a crematory or columbarium or both, funeral director or an embalmer, оr funeral establishment.”
Id. § 45 .
Under the plain language of the statute, in order to be shielded from liability by section 45, a defendant must show the following: (1) the defendant is a cemetery organization, a business operating a crematory or columbarium or both, a funeral director or an embalmer, or a funeral establishment; (2) the defendant carried out the written directions of a decedent or the directions of any person who represents that the person is entitled to control the disposition of the decedent‘s remains; and (3) the claims against the defendant do not constitute gross negligence or willful acts.
¶ 22 The first element is not at issue in this appeal, as there is no dispute regarding Bradshaw‘s status as a funeral establishment. Likewise, the third element is not at issue in this case, as the dismissed claim did not allege gross negligence or willful conduct on the part of Bradshaw.
C. Section 45 Does Not Require Reasonable Reliance
¶ 24 Coley asserts that, to claim the protection of
¶ 25 We disagree with Coley‘s interpretations of
D. Reasonable Reliance Is Not Required to Avoid Absurd Outcomes
¶ 27 Coley argues that reading
¶ 28 While it is true that statutes should be interpreted to avoid absurd, unreasonable, or unjust results that the legislature could not have intended (Palm v. Holocker, 2018 IL 123132, ¶ 21), we do not find that reasonable reliance is necessary to avoid an absurd result. Section 45 already takes into account the type of knowing actions described by Coley, as it protects funeral establishments from negligent conduct, but not gross negligence or willful conduct. Willful conduct can be either intentional or reckless. Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 275 (1994). Willful conduct can include a “conscious disregard for the right of another to possess and preserve the body of [a] decedent for burial.” Rekosh v. Parks, 316 Ill. App. 3d 58, 71 (2000). As such, a funeral establishment could be held liable in the scenarios described by Coley, since knowingly carrying out the directions of someone who is not authorized to determine how to dispose of the decedent‘s remains would constitute willful conduct outside the protection of section 45. Indeed, Coley was able to pursue his claim for willful and wanton interference at trial, based on the same set of facts as his negligence claim.
E. The Crematory Regulation Act Does Not Support Reasonable Reliance
¶ 30 Coley argues that the reasonable-reliance element of section 45 is also supported by
“The cremation authorization form, other than pre-need сremation forms, shall also be signed by a funeral director or other representative of the funeral establishment that obtained the cremation authorization. That individual shall merely execute the cremation authorization form as a witness and shall not be responsible for any of the representations made by the authorizing agent, unless the individual has actual knowledge to the contrary.”
410 ILCS 18/20(a)(1)(N) (West 2014) .
¶ 31 While Coley did cite the Crematory Regulation Act in his amended complaint, he did not raise the argument that it must be considered in pari materia with the Remains Act in his response to Bradshaw‘s motion. However, forfeiture is a doctrine of administrative convenience, not one of jurisdiction, and the interests of maintaining a sound body of precedent can override forfeiture. People v. Segoviano, 189 Ill. 2d 228, 243 (2000). Accordingly, we will briefly discuss the Crematory Regulation Act. “Under the doctrine of in pari materia, two statutes dealing with the same subject will be considered with reference to one another to give them harmonious effect.” People v. McCarty, 223 Ill. 2d 109, 133 (2006). We agree with Coley that
F. The Slayer Statute Does Not Support Reasonable Reliance
¶ 33 Coley argues that
G. Cochran Does Not Require Reasonable Reliance
¶ 35 Coley argues that the supreme court‘s recognition of negligent interference with the right to possess a corpse as a cause of action, in Cochran v. Securitas Security Services USA, Inc., 2017 IL 121200, ¶ 24, applies to funeral homes. As such, he should be allowed to pursue his negligence claim against Bradshaw. Bradshaw notes that it never argued that section 45 was a
H. Bradshaw Established the Necessary Facts to Support Its Motion to Dismiss
¶ 37 Coley argues that, because the amended complaint alleges that Bradshaw knew that Lawrence was charged with Raashanai‘s murder, it was reasonable to infer that Bradshaw knew that she had no right to control the disposition of Raashanai‘s remains. As such, it could not have reasonably relied on North‘s representations sinсe they were based on the transfer of Lawrence‘s rights to North. Coley further argues that the deposition of Richard Bradshaw demonstrates that he knew that Lawrence was in custody for Raashanai‘s murder since he called the coroner‘s office to find out. Additionally, Coley argues that the deposition testimony shows that the coroner‘s office suggested to Richard Bradshaw that he prepare something transferring Lawrence‘s rights to North and that neither Lawrence nor North suggested this procedure. Further, it was Richard Bradshaw who gave North the Release and the Authorization Forms to complete, demonstrating that Bradshaw was in essence making the representations—that Lawrence and subsequently North had the right to dispose of Raashanai‘s remains—to itself. Bradshaw counters that its motion to dismiss was supported by an affidavit establishing that, when it facilitated the cremation of Raashanai‘s remains, it was carrying out the directions of a person representing that he had the right to control the disposition of those remains. Further, Coley failed to rebut that affidavit with a counteraffidavit or raise before the trial court the depоsition testimony in his response to the motion. As such, Coley should be barred from raising the deposition testimony now. Bradshaw also maintains that Coley misrepresents the deposition testimony and that, while it knew that Lawrence was incarcerated, it did not know that Lawrence had been charged with Raashanai‘s murder.
¶ 38 With regard to the deposition testimony, arguments not raised before the trial court are forfeited on appeal. IPF Recovery Co. v. Illinois Insurance Guaranty Fund, 356 Ill. App. 3d 658, 666 (2005). Coley‘s failure to raise the deposition testimony in response to Bradshaw‘s motion to dismiss forfeits the issue on appeal.
¶ 39 We now move to the substance of Bradshaw‘s motion to dismiss. If the grounds for dismissal do not appear on the face of the pleading being attacked, a
¶ 40 Upon consideration however, North‘s affidavit does not challenge the factual allegations of Coley‘s complaint, particularly the allegation that Bradshaw knew that Lawrence was charged with murder. Rather, the affidavit established the affirmative matter thаt North represented to Bradshaw that he was entitled to control the disposition of Raashanai‘s remains and that Bradshaw carried out his instructions. As such, Bradshaw established the elements required by section 45.
¶ 41 As to Coley‘s argument that the representations were not North‘s because Bradshaw instructed him to fill out the forms, he cites no case law in support of his claim, and at least one of the forms, the cremation authorization, is required by statute. See
I. Bradshaw Was Not Obligated to Locate Coley
¶ 43 Coley argues that count III of his amended complaint alleged three alternative theories of negligence: (1) Bradshaw failed to obtain a proper cremation form from Coley, i.e., he did not use reasonable efforts to locate Coley; (2) Bradshaw secured and transmitted an invalid cremation form; and (3) Bradshaw transported and/or allowed the transportation of Raashanai‘s remains for cremation without proper authorization from Coley. Coley maintains that, even if
¶ 44 While Rekosh found that the funeral home‘s facilitation of an unauthorized cremation could constitute extreme and outrageous conduct, it is silent as to what obligation if any the funeral home had to try to locate the next of kin.
III. CONCLUSION
¶ 46
¶ 47 Affirmed.