Culpepper v. Pearl Street Building, Inc.

improve reve- maldng an extra effort to er costs, Dagmar will the Commission

nues reduce F. CULPEPPER James Petitioners, away in the rate case just it next I. take to anyway.” The [sic] incentive rewarded designed to motivate the Public Service INC., BUILDING, a Col- PEARL STREET pursue company employees and its ex- Rayanne Mori; corporation; Lor- orado future, by cellent results in the demon- Newton, Transport M & M en superi- can from d/b/a strating that benefit Newton, Respon- Company, and Loren granting performance. believe that We company dents. reason- an incentive efficiency, and step improved towards No. 93SC458. ultimately rates customers

thus lower the future. Colorado, Supreme Court of En Banc. power, by district court has the While the statute, PUC, “the review decisions of the July 1994. judicial review is rela- scope permissible Rehearing Aug. Denied Montrose, City tively narrow.” ex- 622. The district court’s evaluation at determining the com- only to “whether tends authority,” regularly pursued its

mission has of the commission

and “whether decision just and whether its con- and reasonable in accordance with the evi-

clusions are

dence,” 40-6-115(3), C.R.S. judgment on discretion and

commission’s appeal on

rate is not to be disturbed matters City See

absent clear abuse of discretion. 629 P.2d at 624. Montrose it

Considering found that the commission public’s grant interest to Public

to be performance, an for future

Service incentive prohibits granting

and that no statute the commission finds incentive where interest, public’s I to be in the cannot

it majority the commis-

agree unreasonable, unjust, or an ruling was

sion’s

abuse discretion. respectfully and would reverse

I dissent re- judgment of the district court and court with directions

mand the case authorizing

affirm the decision of PUC to Public Service.

the incentive award MULLARKEY, C.J., J.,

ROVIRA,

join in dissent. this LLC, Jablonski, Kirgis

Gorsuch James A. Denver, petitioners.

Cooper P.C., Mann, Kelley, & John R. Denver, respondents Bldg., Pearl Street Rayanne Inc. and Mori. Evans, Epstein

Hall & Alan B. James Powers, Denver, respondents Loren Newton, M Transport & M Co. and d/b/a Loren Newton.

Justice Opinion VOLLACK delivered the of the Court. granted

We certiorari to review the court appeals decision in Culpepper v. Pearl Inc., (Colo. Building, Street No. 92CA0729 29, 1993), App. Apr. opinion not selected publication. We are asked to decide plaintiffs, whether the whose deceased son’s mistakenly cremated before an au- topsy performed, could be suffered a com- pensable injury. granted

The trial court summary judg- defendants, ment motion of the ruling that plaintiffs could show damages no actual and that there was no evidence that intentionally had acted to emotional distress to plaintiffs. affirmed, appeals court of holding that dam- ages for emotional distress were available only when a defendant’s conduct was willful wanton, and that there was no cause of action for infliction of emotional resulting from mishandling of a dead We affirm the results reached the trial court and appeals, the court of and hold that have no viable claims for conversion or conduct. I. plaintiffs, Dagmar James and (the

per Culpeppers), parents were the James (Culpepper). Jr. Au- On 31,1990, gust son, aged thir- ty-two, was found apartment. his He approximately had been dead one week. The learning death.2 them from the cause Coun- transported to Jefferson County employees its who Jefferson the cause of ty Coroner’s office determine subsequent- were individual defendants were arrival, body was marked Upon death. suit, the claims for dismissed from the placed present Also a cooler. of contract and civil violations breach decomposed body badly cooler was granted trial the were dismissed. The court Connolly, as James victim identified suicide judgment on summary motion defendants’ the gunshot a wound to died from who had outrageous the conversion and claims for head. conversion, the trial conduct. On the issue of arranged The office had for Con- coroner’s that, Culpeppers the court ruled because had nolly by Pearl Build- to be cremated Street pleaded any damages, they actual were (Pearl Street), obtaining per- ing, after Inc. damages. exemplary Fur- not entitled to Connolly’s family. Defendant mission from thermore, held, exemplary trial court the (Mori) and Rayanne Mori was the owner damages not recoverable when a defen- were arranged operator of Street. Mori Pearl merely negligent, dant’s actions were but (Newton), M operator of with Loren Newton un- only action were available when the was Transport pick up the Company, M & in a willful and wanton manner. dertaken bring body Connolly and it to Pearl of James summary The court further found that trial and an assis- for cremation. Newton Street Culpep- judgment appropriate the was on office, and, for the tant arrived at coroner’s pers’ outrageous because the conduct claim mistakenly took disputed, Culpeppers reasons that are not show that the defen- could engaged specif- in the the Connolly’s, of and dants conduct with Culpepper’s instead causing ic of severe emotional distress. intent transported to Pearl Street. it Culpeppers The court reasoned that the also arrival, placed in Culpepper’s body was On only infliction of could recover intentional crematory, began the cremation the Mori present if were at the emotional distress Meanwhile, pathologist at procedure. outrageous conduct. scene of that office discovered coroner’s affirmed, holding appeals court that The of per’s had been taken the crematori- damages exemplary for emotional distress Connolly’s body was still um and that body, mishandling a of dead related Mori, telephoned immediate- cooler. He who injury, physical of re- without evidence were Although flesh ceased cremation. only showing on a of willful and coverable intact, gone body, the from the skull was appeals, citing conduct. The court of wanton remains were delivered to the Jeffer- City ruling its Kimelman v. Colorado of County positive a son Coroner for identifica- further Springs, (Colo.App.1988), 775 P.2d 51 tion of the The remains were subse- Culpeppers not recover held that the could Culpepper’s parents, who quently released theory a of infliction of emotion- on completion of the cremation. arranged mishandling resulting of al from the brought action Culpeppers later this The holding because of Kimelman’s crematorium, transportation against the state. not exist this claim did County, reasoning em- company, and several of appeals Jefferson The of echoed the court claim, of organization disposing court in as individual trial ployees of each outrageous conduct. defendants, asserting of conversion claims con- property, breach of and destruction II. conduct, tract, civil wrongful They argued that the violations.1 We first address initial and nu- prevented In their remains of conversion. cremation of their son’s investigators negligence found evidence They beliefs. Police did not assert a claim Jr., apparently that the court play because believed the death of James foul City holding appeals' Colo- Culpepper Kimelman was an indicates and the record pre- (Colo.App.1988), Springs, rado experi- insulin-dependent diabetic who had been cluded such an action. encing problems related to his diabetes health during the months before his death. six depositions cre- 2. The stated against religious moral their mation complaints, merous amended but improper whether actions caused alleged physical were pain suffering liable for emotional or family surviving injury, intentional destruction and conversion of members. rather, property, namely, pecuniary; damages seldom their their son. are grounded physical They bury injuries in the mental argued right pre- that the Scarpaci quasi- serve survivors. v. Milwaukee Coun- the remains their son was ty, 96 Wis.2d 292 N.W.2d property right, wrongful which the cre- mation the defendants interfered. “quasi-property” Under fiction of question whether has a survivors, right in the the Second Restate- a deceased proposed ment of Law of Torts has member has never been addressed cause for of action tortious interference with Clearly, this court. be property there can no dead bodies: right sense, body in a in a dead commercial § 868. Interference Dead with Bodies body since a dead cannot be bartered or sold. intentionally, recklessly neg- recognized quasi-proper- Some courts have a One who or removes, withholds, ty right ligently or pur- in dead bodies for the mutilates limited operates upon body pose seeing body a of a dead person of or decently is prevents proper disposed its interment or 22A cremation interred or of. See Am.Jur.2d (1988) subject liability to cases; § to a member of the Dead 3 cited Bodies and see of deceased who is entitled Highland Memory also v. Whitehair Gar- disposition body. dens, of the Inc., 458, 438, 327 174 W.Va. S.E.2d (1985) (“The quasi-property rights 441 (Second) (1979). § Restatement of Torts 868 right custody survivors include the of the Nevertheless, comment a to section 868 con- body; it in to receive the condition which cedes that: mutilation; left, it was without have the [t]he technical basis of the cause of action body respect, treated decent without right the interference with the exclusive outrage indignity thereto; bury or and to body, frequently of which control dispose body of otherwise without inter- “property” has been called the courts a ference.”). not, “quasi-property” or a right. This does however, very fit category well into the of Historically, quasi-property the notion of a property, body ordinarily since the cannot right recovery neg arose to facilitate for the transferred, be utility sold or has no and ligent mishandling body. of a If dead only purpose can be for one used plaintiff property show right could that his practice In interment cremation. harmed, had been he would avoid the burden right technical has as a peg served mere proving emotional distress was upon hang damages which to the men- by physical accompanied injury.3 for See Stra survivor; upon tal distress Kennedy chan F. inflicted Hosp., v. John Memorial reality and in the cause action has been (1988); 523, Note, 109 538 N.J. A.2d 346 exclusively one the mental distress. Damages: Pleading: Property: May Who (Second) Wrongful Recover Disturbance a Dead Restatement of Torts 868 cmt. a (1979) added). Body, L.Q. 108,110-11 19 In (emphasis Although Cornell courts however, reality, primary recognize concern of the a cause of action for intentional right injury itself, is not the of a mishandling body,4 the dead dead few have al- Anderson, 517, plaintiff physical In injury Towns v. 195 Colo. sustained or was in (1978), citing § danger." 1163 436 Restatement the "zone of (Second) (1965), recognized of Torts we cause recovery 4. This has allowed court when the mis- negligence only plaintiff of action in not when a handling See, dead of a was willful and wanton. physically injured but also when the defendant Junction, e.g., Spomer City v. Grand 144 bodily created an unreasonable risk of harm to 207, (1960) (finding P.2d 355 960 plaintiff, plaintiff evidence suffered emotional City’s wanton physical willful and resulted exhuma- distress which in serious man- parents’ tion and reburial of son’s over ifestations or mental recognized illness. We have never objections); Olinger Mortuary of action for emotional dis- v. Fitzsimmons Ass’n, (1932) grounded negligence proof (allowing tress without 17 91 Colo. P.2d 535

881 hospital proceed (holding duty had to turn over plaintiff to on a claim of lowed a negligence. parents recognizing 868 of Restatement child’s remains to but Section minority viewpoint, and most represents 868 involved the tort of that section distress, considered it in the context wrongful states that have infliction of emotional negligence of an action in have declined right); dubious” “somewhat See, Metropolitan e.g., Gonzalez v. Gardens, follow it. Highland Memory Whitehair v. Trust, County 626 Dade Pub. Health So.2d (1985) Inc., 327 438 W.Va. S.E.2d (Fla.Dist.Ct.App.1993) (denying recov (acknowledging quasi-property given ery to parents of dead infant who were 868). adopting dead section wrong body sustained burial because Culpeppers urge adopt us to sec physical injury and the defendant did tion 868 of maliciously, rejecting theory quasi- act recognize cause of action this 868); property right espoused section á state interference with Courtney Joseph Hosp., Ill.App.3d v. St. appeals opinion, citing The court of (1986) 397, 102 Ill.Dec. 500 N.E.2d 703 City Springs, Colorado Kimelman (rejecting negligence claim of section 868 and (Colo.App.1988), ruled that such a P.2d widow, improper whose husband’s However, claim was not available. the court open- unfit for stored thus rendered appeals appears to have reached the issue viewing, precedent required casket because sponte, injury impact); adopt of whether to such cause sua physical Burgess v. Per or due, (1986) 473, (ruling Culpeppers 721 raise Kan. P.2d 239 since did not it either to 239 against physician of action the trial court or in their briefs the court mistakenly performed autopsy an who appeals. plaintiffs pursued son could be Moreover, Culpeppers on several occa- only physician’s if the actions intention were specifically sions stated that were not malicious, negli if al or but not were bringing negligence claim. In their brief gent); Mary’s Soc’y, Church 18 Sackett v. St. opposing the defendants’ motion for sum- (1984) (al 186, Mass.App.Ct. 464 N.E.2d 956 mary judgment, example, they for distin- lowing negligent no on defendant’s mis Kimelman, guish explaining their case from handling during burial because the casket an that because theirs was not action

plaintiffs physical injury no and the suffered by precluded negligence it was not the court reckless); mishandling was not intentional or appeals’ holding in another Kimelman. In Airlines, Pa.Super. Hackett v. United 364 instance, responded to (1987) 612, daughter’s (denying A.2d 528 971 require them file defendants’ motion to negligent dis claim of infliction emotional sec- certificate of review accordance with against damaged tress her fa airline (1987 13-20-602, & 1993 transit); tion 6A C.R.S. Scarpaci ther’s and casket in 663, Supp.). plaintiffs That section directs County, v. Milwaukee 96 Wis.2d 292 (1980) attorney negligence against in a action (rejecting theory prop N.W.2d 816 professional to a certificate that recovery licensed file erty right denying knowledge- expert an performance autopsy he has consulted with negligent of an be alleged negligent area plaintiff inju physical cause the suffered Court, expert has ry). Superior v. 54 conduct and that concluded Christensen Cf. 79, justifica- Cal.Rptr.2d 2 P.2d 181 the claim does not lack substantial Cal.3d 820 (1991) (holding responsible neg Failure to a certificate results mortuary tion. file such complaint. In re- ligent handling of human remains because in the dismissal of motion, duty sponse to the the Cul- mortuary owed to the close relatives for defendants’ performed); peppers stated that section 13-20-602 did not whom funeral services were is not an Kennedy apply “[t]his v. F. to their suit because Strachan John Memorial (1988) in which Hosp., negligence,” but rather one 109 538 A.2d 346 action N.J. advertisement). photographs recovery by airplane in an in a contract action widow after used body by mortuary transported her husband's 882 by nying physical injury McCarty, harm caused in- in Rugg defendants was

tentional. 173 P.2d citedWe (Second) section 46 of the Restatement failure to raise at trial or (1965): Torts appeals the issue of to the court of whether Outrageous Causing § 46. Conduct Se- cause of action exists interfer vere Emotional Distress ence with a dead under section precludes (1) by outrageous One who extreme and question.5 addressing us from See A.O. intentionally or recklessly causes Prods., Kallsen, Smith Harvestore Inc. v. severe emotional to another (Colo.1991); Blinder, P.2d Alzado v. subject liability for such dis- emotional (Colo.1988). Co., Robinson & tress, bodily if harm other it, for bodily results from harm. only We therefore address the Cul- liability The elements of for the tort of ex- peppers’ injury of their characterization as outrageous treme and conduct are that: formally reject one of conversion. We theory fictional that a exists engaged 1. defendant [t]he extreme support a dead an would action for conduct; Rather, injury conversion.6 like that suf engaged 2. con- [t]he defendant by properly fered is more recklessly duct or with the intent of caus- through addressed a tort action related to ing plaintiff severe emotional dis- the infliction of distress or emotional to men tress[;] and willful, anguish wanton, tal caused in plaintiff [t]he incurred severe emo- sulting conduct, through an action for tional distress which was caused accompanying breach of contract and mental defendant’s conduct. suffering. CJI-Civ.3d Proof accompanying 23:1. of physical injury required. not Rugg is v. III. McCarty, 173 Colo. 476 P.2d 753. The before second issue us is whether “Outrageous conduct” is con defined as Culpeppers the have been should to allowed character, outrageous duct that is “so proceed outrageous on their claim con degree, so extreme in go beyond as to all They duct. the assert that defendants inten possible decency, regard bounds of and to be tionally recklessly or caused them severe atrocious, ed utterly as intolerable a Culpeppers argue emotional The distress. community.” civilized v. Grabri the that “intent” of the defendants Destefano is shown an, (Colo.1988); 763 P.2d 286 also see because the actual of cremation the was Co., Churchey Adolph v. Coors 1336 They intentional. argue the alternative (Colo.1988). that the conduct of the defendants was reck they less because have should known that a person acts with intent to cause A mistaken cremation would cause severe emo severe emotional when engages distress he tional distress to the of the deceased. purpose causing conduct with the of severe disagree. We emotional person, distress another he or recognized a We cause of action for knows that his conduct is certain or substan tially severe emotional distress without accompa- certain to that person have result. A Culpeppers any We note that they damages. the had no that property contractu- suffered defendants, relationship any al converted, with of the allegedly body, that was a has successfully bring negligence that to they compensable damages value. measure of would first have to that the show defendants value prop- conversion is the of the converted duty owed them a was which breached erty plus interest from the time of conversion holding, cremation of the Because of our McCroskie, the time of trial. Masterson v. duty we do not address such a whether existed. (1978). Exemplary 573 P.2d 547 damages proof are recoverable not without of conversion, 6. Even if this were an action for we Co., damages. actual v. Palmer A.H. Robins agree Culpeppers with the trial that the court (Colo.1984). P.2d 187 could not recover because failed to show lessly knowledge there with the that was recklessly causing severe emotional acts if, probability that their conduct at the time of the substantial another conduct, reasonably would cause severe emotional distress. or should have he knew any showing probabili- There has been no that that was a substantial known there emo- defendants chose a course of action cause severe ty that conduct would strong knowledge of facts that would create person. to the other See CJI- tional disti’ess Culpeppers. probability injury 23:3. Civ.3d Furthermore, agree trial we with the court motion To the defendants’ withstand have that no reasonable could found summary judgment, had that the conduct of the defendants outra- burden to show that a triable issue fact geous. do not believe that defen- We Lines, Inc. Air v. existed. Continental beyond decency dants acted bounds Keenan, (Colo.1987). A triable in an manner that intolerable in a atrocious is if were evi issue of fact would exist there They community. did not mistreat civilized engaged in that the defendants outra dence Jr., of James handle specific intent geous with the They disrespect. not act in an it with did causing severe emotional distress or outrageous manner. recklessly with knowl acted edge probability there a substantial their emo conduct would severe IV. Although question tional distress. that, is no We hold because there generally

whether conduct body and have in a dead because by jury, it fact be one of determined any damages, not suffered actual responsibility of a court to deter first pursue an pers may not action conver- persons mine whether reasonable could differ sion. We do reach issue whether question. on have re- would been (1965); § 46 cmt. h Price v. Federal theory negligent mishandling cover on (D.Colo. F.Supp. Express Corp., 660 properly because the issue was not 1987); Cavanaugh, Colo.App. Meiter further raised in the lower courts. We con- 454, 580 P.2d 399 clude that the actions defendants were correctly trial court We hold seriously egregious representative summary judgment granted the defendants’ support that a claim outra- conduct would First, Culpeppers produced no motion. the geous conduct. the intended to that evidence appeals judgment The the court of reck- or acted cause them emotional distress affirmed. wrong body. lessly cremating in While the actions one or more of the defendants the KIRSHBAUM, J., part in and concurs negli- proved to have may have been been SCOTT, J., specially part, in and concurs support not recov- gent, such conduct would special joins in the concurrence and As the ery on a conduct. concurrence. stated, clear from the facts “[I]t trial court they had did not know the that Defendants concurring part in KIRSHBAUM Justice therefore, no reason wrong body, there was specially concurring part. in would them know that their behavior III, I, parts in IV of the I concur likely emotional distress cause severe However, join I majority opinion. cannot Indeed, that, undisputed Plaintiffs.” it part II thereof. Rayanne realized she was soon Mori as as complaint allegations The do cremating wrong body, stopped she the the by or reckless conduct intentional the remains. Such establish and retrieved cremation allega- any While such to in- of the defendants. with intent inconsistent might negligent conduct Culpeppers. tions establish on the flict emotional distress defendants, Culpeppers’ some or all of support Nor do the facts pursue negligence purposely elected not acted reck- that the defendants contention request and did not of conversion has been confined to those claims this action recognize principles chattel, major trial court to set with with interferences (Sec it, forth Section 868 of Restatement plaintiffs seri- rights which are so ond) (1979). notes, majority As the of Torts ous, important, justify as to so the forced appeals apparently the court of elected to judicial the defendant sale to which is sponte. Maj. question op. that sua address distinguishing W. feature action.” circumstances, I at 881. In view of these Keeton, al., Page et Prosser and Keeton on appeals that conclude the court erred 1984). (5th the Law 15 at 90 Torts ed. addressing theory recovery neither advo See also suggested Culpeppers. cated nor The (1965) (conversion § 222A is an exercise any issue should not be considered to extent seriously dominion “which with so interferes by this court. See A.O. Smith Harvestore right of another to control it that Prods., Kallsen, (Colo. Inc. v. may justly required pay actor be the other 1991). chattel”). the full value of the rejects majority con alleged posses- that their version claim on basis of its conclusion sory pur- interest in the was “for the property that there is no in a dead poses Their complaint of burial.” amended support Maj. that such a would claim. allege wrongful- does not that the defendants op. major at 882. It is not clear whether the way substantial that interfered ity acknowledges members do particular possessory only do interest. Not have some in dead bodies. they allege fail to Certainly some courts commentators burial; capable allege affirmatively Scarp See, rights. recognized e.g., have In elected to cremate the County, v. Milwaukee 96 Wis.2d aci view of the pleadings, agree of this state I (1980); 292 N.W.2d Michelle Bouria majority’s with the conclusion that the claim Bray, Personalizing Personalty: noff To properly for conversion was dismissed. Bodies, Property Right ward a Human (1990); Jaffe, Erik Tex.L.Rev. 209 S. “She’s Therefore, specially part I concur in II of Eyes”: Assessing Got Bette DavisRs] majority opinion. Organs Nonconsensual Removal Cadaver SCOTT, J., Takings Under the Due joins Process Claus in this concurrence and es, I Colum.L.Rev. am not special concurrence. prepared to conclude interests of

surviving family appropriate members

care of the of a deceased are not judicial protection. susceptible

interests prepared

Nor am I to conclude that a dead CONTRACTORS, INC., any has no measurable value under HAMON corporation, circumstances. a Colorado Petitioner, however, conclude, I do that the pers a claim have not established for conver- sion in this case. This court has defined The COURT DISTRICT OF the FIRST distinct, “any “conversion” as unauthorized JUDICIAL DISTRICT the Honor- ownership act of dominion or exercised Henry Nieto, E. District Court personal property one belonging over Judge, Respondents. Co., Byron

to another.” v. York Inv. No. 94SA34. 742, One gist commentator has noted “[t]he Colorado, Supreme Court exercise, exercise, tort is the or intent En Banc. dominion or over the control July of, with, another in denial or inconsistent Speiser, her therein.” Stuart M. al., et Law The American 24:1 at (1983).. Another has stated that “the tort

Case Details

Case Name: Culpepper v. Pearl Street Building, Inc.

Court Name: Supreme Court of Colorado

Date Published: Jul 11, 1994

Citation: 877 P.2d 877

Docket Number: 93SC458

Court Abbreviation: Colo.