Cochran v. Securitas Security Services USA, Inc. , 2017 Ill. LEXIS 665 ( 2017 )

2017 IL 121200IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 121200)
DONNA COCHRAN, Appellee, v.
SECURITAS SECURITY SERVICES USA, INC., Appellant.
Opinion filed September 21, 2017.
JUSTICE THOMAS delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Freeman, Kilbride, Garman, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 The issue in this case is whether a plaintiff bringing a cause of action for
tortious interference with the right to possess a corpse must allege facts showing
that such interference resulted from the defendant security company’s wilful and
wanton misconduct. For the reasons that follow, we hold that no such allegations
are necessary and that recovery in such cases is permissible upon a showing of
ordinary negligence.
¶2 BACKGROUND
¶3 This appeal arises from an order granting defendant’s combined motion to
dismiss plaintiff’s third amended complaint, brought pursuant to section 2-619.1 of
the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2014)). We
therefore take the following facts from that complaint and accept them as true for
purposes of our review. See Wackrow v. Niemi, 231 Ill. 2d 418, 420 (2008).
¶4 On September 12, 2010, Walter Andrew Cochran died in his home at the age of
39. On September 14, 2010, Walter’s body was transported to the Moultrie County
morgue, where the coroner was unable to determine the cause of Walter’s death.
Later that same day, Walter’s body was transferred to Memorial Medical Center in
Springfield (Memorial) for a full autopsy. Upon arrival at Memorial, Walter’s body
was received by employees of defendant, Securitas Security Services, USA, Inc.
Defendant is a private security firm that had contracted with Memorial to provide
certain security services at the hospital, including the receiving, tracking, and
releasing of bodies processed by Memorial’s morgue. Upon receiving Walter’s
body at the morgue, defendant’s employees placed it in a Ziegler case, which is a
closed steel case used to store severely decomposed remains. Defendant’s
employees did not place a visible identification tag on Walter’s body, nor did they
affix an identification label to the Ziegler case containing Walter’s body.
Defendant’s employees also erroneously recorded in the morgue’s logbook that the
body contained in the Ziegler case was that of a man named William Carroll. Two
days later, on September 16, 2010, representatives from Butler Funeral Home
(Butler) arrived at Memorial’s morgue to collect William Carroll’s body. Relying
solely on the erroneous logbook entry, and without conducting any visual
inspection of the body, defendant’s employees provided Butler with Walter’s body,
rather than with William Carroll’s body. Before the error could be discovered,
Butler left Memorial with Walter’s body and had it cremated. As a result, no
autopsy was ever performed on Walter’s body, and no cause of death was ever
determined.
¶5 Plaintiff, Donna Cochran, is Walter’s mother. In September 2012, acting both
in her individual capacity and as the independent administrator of Walter’s estate,
plaintiff brought a seven-count complaint against defendant, Memorial, and Butler
for various claims relating to the wrongful cremation of Walter’s body. In June
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2015, after settling her claims with both Memorial and Butler, plaintiff filed a third
amended complaint against defendant alleging one count of tortious interference
with plaintiff’s right to possess Walter’s body. According to the third amended
complaint, defendant and its employees had a duty not to interfere with plaintiff’s
right to possess and make appropriate disposition of Walter’s body. Plaintiff
alleged that defendant and its employees breached this duty by, among other things,
failing to follow industry standards and hospital policies governing the
identification and processing of dead bodies, failing to maintain an accurate log of
the identity and location of bodies in the Memorial morgue, relying solely on an
inaccurate logbook when releasing the body to Butler, releasing to Butler a body
that lacked an identification tag, releasing to Butler a body that did not match the
description of the body being claimed, and releasing to Butler the wrong body.
Plaintiff further alleged that, as a proximate result of these acts and omissions, she
experienced and suffered severe emotional distress, mental suffering,
embarrassment, humiliation, and financial losses.
¶6 In July 2015, defendant filed a section 2-619.1 combined motion to dismiss the
third amended complaint. The combined motion first sought dismissal under
section 2-619 of the Code (735 ILCS 5/2-619 (West 2014)) on the grounds that
plaintiff “ignore[d] both the facts known to her and her counsel at the time of the
filing of her pleading in violation of Illinois Supreme Court Rule 137 and the
pleading requirements of a cause of action for interference with the right to
possession of the body of a decedent under Illinois law.” More specifically,
defendant’s motion argued that, at the time she filed the third amended complaint,
plaintiff knew that (1) Memorial was the only entity that was legally authorized to
release Walter’s body to Butler, (2) Memorial bore sole legal responsibility for
establishing procedures for the handling and release of bodies in its morgue,
(3) defendant had no legal authority to release a body from Memorial’s morgue,
(4) defendant did not physically remove or transport Walter’s body from the
Memorial morgue, (5) Butler erroneously signed for Walter’s body at the Memorial
morgue, (6) Butler erroneously removed Walter’s body from the Memorial
morgue, and (7) Butler erroneously cremated Walter’s body after erroneously
removing it from the morgue. The motion next sought dismissal under section
2-615 of the Code (735 ILCS 5/2-615 (West 2014)) on the grounds that plaintiff
failed to allege sufficient facts showing that (1) defendant owed a duty to plaintiff,
(2) defendant’s conduct was wilful and wanton, (3) defendant’s conduct was a
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proximate cause of plaintiff’s claimed damages, and (4) emotional distress
damages are recoverable in this type of case. Following a hearing, the circuit court
of Sangamon County granted defendant’s motion and dismissed the third amended
complaint with prejudice. In doing so, the court explained that dismissal was
warranted under section 2-615 because plaintiff “failed to plead sufficient facts to
support the allegation of duty owed by the Defendant *** to the Plaintiff” and
under section 2-619 because “there *** is no set of facts by which the Plaintiff may
demonstrate” such a duty.
¶7 Plaintiff appealed, and the appellate court reversed. 2016 IL App (4th) 150791.
The appellate court first held that the trial court erred in granting the section 2-619
portion of defendant’s motion to dismiss both because it was not supported by the
requisite affidavits and because it was effectively a section 2-615 motion to
dismiss, in that it attacked the legal sufficiency of plaintiff’s claim instead of
raising an affirmative defense to that claim. Id. ¶¶ 24, 27. The appellate court then
held that the trial court also erred in granting the section 2-615 portion of plaintiff’s
motion to dismiss. Specifically, the appellate court rejected defendant’s argument
that, in order to state a claim for tortious interference with the right to possess a
corpse, a plaintiff must plead specific facts demonstrating that the defendant’s
misconduct was wilful and wanton. Rather, the appellate court explained, the
emerging standard is that such a claim may be brought on an allegation of ordinary
negligence, which plaintiff’s third amended complaint adequately set forth. Id.
¶¶ 52, 61. Accordingly, the appellate court reversed the trial court’s judgment
dismissing plaintiff’s third amended complaint and remanded the cause for further
proceedings. Id. ¶¶ 53, 63.
¶8 We granted defendant’s petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Mar.
15, 2016)).
¶9 DISCUSSION
¶ 10 Though defendant moved to dismiss plaintiff’s third amended complaint under
both section 2-615 and section 2-619 of the Code, it now defends only the section
2-615 portion of its motion, insisting that “there is no need for this Court to address
the section 2-619 motion.” Accordingly, we confine our analysis to section 2-615.
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¶ 11 A motion to dismiss under section 2-615 challenges the legal sufficiency of a
complaint. Kanerva v. Weems, 2014 IL 115811, ¶ 33. In ruling on such a motion, a
court must accept as true all well-pleaded facts in the complaint, as well as any
reasonable inferences that may arise from them. Id. The essential question is
whether the allegations of the complaint, when construed in the light most
favorable to the plaintiff, are sufficient to establish a cause of action upon which
relief may be granted. Id. A cause of action should not be dismissed under section
2-615 unless it is clearly apparent from the pleadings that no set of facts can be
proven that would entitle the plaintiff to recover. Id. Our review of an order
granting a section 2-615 motion to dismiss is de novo. Id.¶ 12 Plaintiff’s third amended complaint alleges one count of tortious interference
with the right to possess Walter’s corpse. This cause of action has a settled place in
Illinois law, and it rests upon the principle that “while in the ordinary sense, there is
no property right in a dead body, a right of possession of a decedent’s remains
devolves upon the next of kin in order to make appropriate disposition thereof,
whether by burial or otherwise.” Leno v. St. Joseph Hospital, 55 Ill. 2d 114, 117
(1973). For more than a century, Illinois courts have recognized that interference
with this right is an actionable wrong and that the plaintiff in such cases is entitled
to recover damages for the mental suffering that is proximately caused by the
defendant’s misconduct. See Drakeford v. University of Chicago Hospitals, 2013
IL App (1st) 111366, ¶ 14; Rekosh v. Parks, 316 Ill. App. 3d 58, 68 (2000); Kelso v.
Watson, 204 Ill. App. 3d 727, 731 (1990); Hearon v. City of Chicago, 157 Ill. App.
3d 633, 637 (1987); Courtney v. St. Joseph Hospital, 149 Ill. App. 3d 397, 398
(1986); Mensinger v. O’Hara, 189 Ill. App. 48, 55 (1914).
¶ 13 The question in this case is whether, to state a cause of action, a plaintiff
alleging tortious interference with the right to possess a corpse must allege facts
showing that the defendant’s misconduct was wilful and wanton. Historically, this
has been considered the case in Illinois, and our appellate court routinely treats the
wilful and wanton standard as settled law. See, e.g., Drakeford, 2013 IL App (1st)
111366, ¶ 14; Rekosh, 316 Ill. App. 3d at 68; Kelso, 204 Ill. App. 3d at 731;
Hearon, 157 Ill. App. 3d at 637; Courtney, 149 Ill. App. 3d at 398. The curious
thing about this is that, with one notable exception, 1 each of these decisions relies
1
See Courtney, 149 Ill. App. 3d 397 (discussed infra ¶¶ 17-21).
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either directly or indirectly upon Mensinger as the source of the wilful and wanton
standard, despite the fact that Mensinger expressly declined to adopt that standard
in this context. Indeed, it is not too much to say that the establishment of the wilful
and wanton standard in this context results less from reasoned analysis than it does
from unexamined assumption and mere repetition. And as we shall see, while such
an assumption may have made sense in 1914, it no longer enjoys any foundation in
Illinois jurisprudence.
¶ 14 In Mensinger, the plaintiff brought an action against undertakers who were
charged with preparing his deceased wife’s remains for burial. Mensinger, 189 Ill.
App. at 49. He alleged the defendants had wrongfully and unlawfully removed his
wife’s hair, rendering her body unfit to be viewed and causing him to suffer greatly,
both in mind and in body. Id. at 49-50. The circuit court dismissed the plaintiff’s
complaint, and he appealed. Id. at 49. In reversing the circuit court, the Mensinger
court found that:
“The decided weight of authority in this country supports the proposition that
while a dead body is not considered as property, in the ordinary, technical sense
in which that word is usually employed, yet the law does recognize a right,
somewhat akin, perhaps, to a property right, arising out of the duty of the
nearest relatives of the deceased to bury their dead, which authorizes and
requires them to take possession and control of the dead body for the purpose of
giving it a decent burial.” Id. at 53-54.
Examining similar cases from other jurisdictions, the court also found that “[t]he
greater weight of authority” permitted a cause of action for solely mental suffering
based on “any wilful or wanton infringement” of that legal right. Id. at 54. It noted
that, in several of the cases it relied upon, “doubt [was] expressed as to whether a
recovery may be had for mental suffering, alone, in the absence of any allegation or
proof of wilful or wanton misconduct,” i.e., when only ordinary negligence is
alleged. Id. In any event, the Mensinger court ultimately did not need to resolve that
question because “the averments of [the plaintiff’s complaint in that case] amount
to a charge of wilful misconduct on the part of the defendants” and that the circuit
court therefore erred in granting the defendants’ motion to dismiss. Id. at 51-52, 57.
¶ 15 Thus, Mensinger never expressly decided whether a claim for tortious
interference with the right to possess a corpse may be stated absent allegations of
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wilful and wanton misconduct. Just as importantly, to the extent that Mensinger
discussed that question at all, it did so in the context of a rule that this court has
since refined and clarified. When Mensinger was decided, the settled rule in Illinois
was that, absent a contemporaneous physical impact or injury to the plaintiff, there
could be no recovery for negligently caused emotional distress. See, e.g., Chicago
Consolidated Traction Co. v. Schritter, 222 Ill. 364, 368 (1906); Braun v. Craven,
175 Ill. 401, 420 (1898). This rule applied with equal force both to the direct
victims of a defendant’s negligence and to bystanders who witnessed the injury of
another. See Rickey v. Chicago Transit Authority, 98 Ill. 2d 546, 550 (1983). In
1983, however, this court abandoned the so-called “impact rule” in favor of the
zone-of-danger rule for cases involving bystanders. Id. at 555. Under the zone-of
danger-rule:
“a bystander who is in a zone of physical danger and who, because of the
defendant’s negligence, has reasonable fear for his own safety is given a right
of action for physical injury or illness resulting from emotional distress. This
rule does not require that the bystander suffer a physical impact or injury at the
time of the negligent act, but it does require that he must have been in such
proximity to the accident in which the direct victim was physically injured that
there was a high risk to him of physical impact. The bystander [in addition]
must show physical injury or illness as a result of the emotional distress caused
by the defendant’s negligence.” Id.Although some confusion subsequently ensued as to whether Rickey eliminated the
impact rule for direct victims as well as for bystanders, this court has since clarified
that the impact rule remains the law for direct victims of a defendant’s negligence,
whereas bystanders’ claims are now governed by the zone-of-danger rule.
Schweihs v. Chase Home Finance, LLC, 2016 IL 120041, ¶ 42.
¶ 16 By 1983, then, the law in Illinois was that, in order to recover damages for the
negligent infliction of emotional distress (NIED), a direct victim of the defendant’s
negligence must allege and prove a contemporaneous physical injury or impact,
whereas a bystander must allege and prove that he or she falls within the
zone-of-danger rule. In time, however, these rules came to be understood not just as
the rules governing the recovery of damages in NIED cases, but also as the rules
governing the recovery of emotional distress damages in all negligence cases. For
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example, in Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230 (1987), the
parents of a child born with hemophilia brought a wrongful birth action against
their doctors and hospital. Id. at 233. By way of remedy, the parents sought
damages both for the resulting medical expenses and for their own emotional
distress. Id. One of the issues in Siemieniec was whether the parents could recover
emotional distress damages in this context. In holding that they could not, this court
explained that, “under the holding of Rickey, before a plaintiff can recover for
negligently caused emotional distress, he must have, himself, been endangered by
the negligence, and he must have suffered physical injury or illness as a result of the
emotional distress caused by the defendant’s negligence.” Id. at 261. The court then
applied the zone-of-danger rule and determined that “[t]here are no allegations in
the complaint from which it can be said that the defendants’ alleged negligence in
any way endangered the parents of the impaired child” or “that the parents have or
will suffer any physical injury or illness resulting from the emotional distress
allegedly caused by defendants’ negligence.” Id. Accordingly, the court held that
the parents in Siemieniec “have no cause of action for the emotional distress
negligently inflicted by the defendants.” Id. at 262-63.
¶ 17 In similar fashion, and perhaps more to the point, our appellate court reluctantly
applied the zone-of-danger rule to bar the recovery of emotional distress damages
in a case involving the cause of action at issue in the case before us, tortious
interference with the right to possess a corpse. In Courtney 149 Ill. App. 3d at 397,
the refrigeration unit in the defendant’s morgue malfunctioned, causing the body of
the plaintiff’s deceased husband to decompose. Id. The plaintiff sued, alleging that
the defendant was negligent in failing to preserve her husband’s body in a condition
suitable for an open casket wake and funeral. Id. In bringing the action, the plaintiff
acknowledged that she was seeking damages solely for “ ‘emotional anguish’ ” that
did not result in physical injury or illness. Id. at 397-98. Nevertheless, the plaintiff
argued that her cause of action should be allowed to proceed because “she was the
direct victim of the defendant’s alleged negligence, not a bystander, and the injury
she sustained (emotional distress) was foreseeable.” Id. at 401. The defendant
moved to dismiss the plaintiff’s complaint on the grounds that it failed to state a
cause of action, and the trial court denied that motion. Id. at 398. The trial court
then certified for interlocutory review the question of whether Illinois recognizes a
cause of action for emotional distress arising from the negligent mishandling of a
corpse. Id.
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¶ 18 In analyzing the certified question, the appellate court began by citing
Mensinger for the settled rule that interference with the next of kin’s right to
possess and make appropriate disposition of a loved one’s remains is an actionable
wrong and that the plaintiff in such cases is entitled to recover damages for the
resulting mental suffering. Id. However, unlike the other courts that have since
addressed this question, the Courtney court did not then simply assert that
Mensinger mandates a wilful and wanton standard in such cases. Rather, the
Courtney court correctly emphasized that Mensinger “expressly declined to decide
whether recovery may be had for mental suffering alone, in the absence of any
allegation of proof of wilful or wanton misconduct.” Id. This observation then freed
the court to examine the question for itself in the first instance.
¶ 19 The initial portion of the Courtney court’s discussion begins with Rickey’s
reminder that courts “ ‘generally have been reluctant to allow recovery for purely
mental or emotional distress’ ” and that the reasons for this include “ ‘that the door
would be opened for fraudulent claims, that damages would be difficult to ascertain
and measure, that emotional injuries are hardly foreseeable and that frivolous
litigation would be encouraged.’ ” Id. at 399 (quoting Rickey, 98 Ill. 2d at 555).
That being said, the Courtney court “seriously question[ed] whether these
apprehensions are well founded where the mishandling of a corpse is concerned.”
Id. In support, the Courtney court first observed that numerous courts and
authorities had by then recognized that recovery for the mishandling of a corpse
may be had upon a showing of ordinary negligence. The authorities included both
the Restatement (Second) of Torts and Prosser and Keeton on the Law of Torts, the
latter of which specifically notes that the mishandling of a corpse creates “ ‘an
especial likelihood of genuine and serious mental distress, arising from the special
circumstances, which serves as a guarantee that the claim is not spurious.’ ” Id.(quoting Prosser and Keeton on the Law of Torts § 54, at 362 (W. Page Keeton
et al. eds., 5th ed. 1984)). The Courtney court expressed its full agreement with
Prosser and Keeton on this point and stated explicitly that it “[did] not believe that
recognizing a cause of action for the negligent mishandling of a corpse would open
the door for fraudulent claims or encourage frivolous litigation.” Id. at 400.
Accordingly, the Courtney court concluded the initial portion of its analysis by
stating that “[w]ere we writing on a clean slate, we would be inclined to permit the
complaint in this case to stand.” Id.
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¶ 20 In the very next sentence, however, the Courtney court stressed that it was not
writing on a clean slate and that it “believe[d] that recognition of plaintiff’s cause of
action is foreclosed by our supreme court’s decision in Rickey.” Id. According to
the Courtney court, the rule that emerged from Rickey was that “[w]here there is no
contemporaneous physical injury to or impact on him, a plaintiff seeking damages
for the negligent infliction of emotional distress must allege both that he was in a
zone of physical danger causing him to fear for his own safety and that he suffered
physical injury or illness as a result of his emotional distress.” Id. at 403. Moreover,
the court explained that this rule applies with equal force whether the plaintiff is a
direct victim of the defendant’s negligence or merely a bystander. Id. at 402. At that
point, and just as this court would do less than a year later in Siemieniec, the
Courtney court concluded that the zone-of-danger rule was the appropriate metric
for assessing the sufficiency of the plaintiff’s complaint, despite the fact that the
plaintiff had not brought a claim for NIED. Not surprisingly, the Courtney court
found that the plaintiff had failed to state a claim in that “[s]he has not alleged that
she was placed within a zone of physical danger causing her to fear for her own
safety when she discovered that her husband’s body had decomposed and could not
be viewed,” nor “has she claimed that she suffered physical injury or illness as a
result of her emotional distress.” Id. In the end, the Courtney court answered the
certified question in the negative, stating that “Illinois does not recognize a cause of
action for emotional distress arising from the negligent mishandling of a corpse.”
Id. at 403.
¶ 21 In both Siemieniec and Courtney, we see a similar dynamic at work. In both
cases, the courts equated the rules governing the recovery of damages in NIED
cases with the rules governing the recovery of emotional distress damages in all
negligence cases. The result was that the recovery of emotional distress damages
effectively was barred for any negligence plaintiff who neither suffered a
contemporaneous injury nor satisfied the zone-of-danger rule, regardless of the tort
that was actually pleaded. It is therefore not surprising that courts would continue
to disallow causes of action for emotional distress arising from the negligent
mishandling of a corpse, as the plaintiffs in such cases almost by definition will
have neither suffered a contemporaneous injury nor satisfied the zone-of-danger
rule.
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¶ 22 This is where things remained until 2011, when this court revisited this area of
the law and concluded that things had gone badly astray. In Clark v. Children’s
Memorial Hospital, 2011 IL 108656, the question again arose whether parents in a
wrongful birth case may recover damages for their resulting emotional distress.
This time, the court held that they could. In doing so, the court explained that our
previous conclusion to the contrary in Siemieniec resulted from faulty reasoning.
Specifically, the court explained that
“the zone-of-danger rule applies only in cases where the plaintiff’s theory of
liability is the negligent infliction of emotional distress. It does not apply
where, as in a wrongful-birth case, a tort has already been committed against
the plaintiffs and they assert emotional distress as an element of damages for
that tort.” Id. ¶ 113.
By way of example of the first type of case, the court pointed to Rickey, where the
plaintiff was an eight-year-old boy who witnessed an accident that severely injured
his younger brother but who himself did not suffer any physical impact or injury.
Id. ¶ 105. The court explained that, “[i]n such cases, where the claim of emotional
distress is freestanding and not anchored to any other tort against the plaintiff,
courts have applied special restrictions such as the zone-of-danger rule because of
concerns regarding the possibility of fraudulent claims or frivolous litigation.” Id.
¶ 106. By contrast, “these special restrictions have no logical bearing on a
wrongful-birth claim, where a tort has already been committed against the parents.”
Id. ¶ 107. This is because “[w]rongful-birth plaintiffs do not assert a freestanding
emotional distress claim, but merely assert emotional distress as an element of
damages for a personal tort.” Id. Such was the case in Siemieniec, where “the
plaintiffs clearly saw their emotional harm claim in this light” and “sought damages
for emotional distress as ‘a natural and foreseeable consequence of the injury they
sustained,’ a consequence which ‘should be included as an essential element in the
calculation of damages.’ ” Id. ¶ 108 (quoting Siemieniec, 117 Ill. 2d at 260-61). To
then drive this point home, the court pointed out that “damages for emotional
distress are available to prevailing plaintiffs in cases involving other personal
torts,” including defamation, conversion, and misappropriation of identity. Id.
¶ 111. This, of course, could not be the case if Siemieniec was correct and
emotional distress damages were recoverable only in cases where the plaintiff
either suffered a contemporaneous injury or satisfied the zone-of-danger rule.
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Accordingly, the court concluded that it “erred in Siemieniec in applying the
zone-of-danger rule to wrongful-birth parents’ claims,” and it therefore
“overrule[d] Siemieniec on this point.” Id. ¶ 113.
¶ 23 In light of Clark, the critical question in the case before us is not whether
plaintiff’s third amended complaint alleges facts showing that she herself either
suffered a contemporaneous injury or falls within the zone-of-danger rule. Rather,
the critical question is whether the theory of liability set forth in that complaint is
NIED or, as in a wrongful birth case, some other tort for which emotional distress is
simply an element of plaintiff’s damages. This is because if plaintiff’s claim falls
into the latter of these categories, there is no principled reason to disallow the
recovery of emotional distress damages upon proof of ordinary negligence. This
court has never held that wilful and wanton misconduct is an essential prerequisite
for the recovery of emotional distress damages in cases involving interference with
the right to possess a corpse, and in fact Clark would presume exactly the opposite.
¶ 24 With that in mind, we can state with complete confidence that, just as with the
wrongful birth claim in Clark, plaintiff’s claim here falls into the category of cases
in which “a tort has already been committed against the plaintiffs and they assert
emotional distress damages as an element of damages for that tort.” Id. Plaintiff’s
third amended complaint alleges one count of interference with the right to possess
Walter’s remains. As we already have discussed, interference with the right to
possess a decedent’s remains is a distinct and independent tort that has a settled
place in Illinois jurisprudence. It arises from the next of kin’s common-law right to
possess and make appropriate disposition of a decedent’s remains and from the
correlative duty not to interfere wrongfully with that right. And while the plaintiff
in such cases is entitled to recover damages for the mental suffering that is
proximately caused by the defendant’s misconduct, the actionable wrong in such
cases is the interference with the plaintiff’s right to possess the decedent’s remains,
not the infliction of the resulting mental distress. In this sense, tortious interference
with the right to possess a corpse is analogous to wrongful birth, where the
infliction of emotional distress is not itself the wrong that was committed but rather
is part and parcel of the damage that results from the wrong that was committed.
Accordingly, just as we have concluded that parents in a wrongful birth case may
recover damages for the resulting emotional distress, we likewise conclude that
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such damages are recoverable in cases involving negligent interference with the
right to possess a corpse.
¶ 25 In reaching this result, we note that today’s decision brings Illinois into
conformity with what has emerged both as the blackletter standard and as the
majority rule among courts that have addressed this issue directly. As the appellate
court below correctly recognized, while section 868 of the first Restatement of
Torts suggested that the recovery of emotional distress damages in cases like this
required proof of wilful and wanton misconduct (Restatement of Torts, § 868
(1939)), the second restatement now makes clear that such recovery is available
upon proof of ordinary negligence:
“One who intentionally, recklessly or negligently removes, withholds,
mutilates or operates upon the body of a dead person or prevents its proper
interment or cremation is subject to liability to a member of the family of the
deceased who is entitled to the disposition of the body.” (Emphases added.)
Restatement (Second) of Torts § 868 (1979).
This point is reiterated in the comments to section 868, which stress that “[t]he rule
stated in this Section applies not only to an intentional interference with the body
itself or with its proper burial or cremation, but also to an interference that is
reckless or merely negligent.” Restatement (Second) of Torts § 868 cmt. d (1979).
In similar fashion, the most recent edition of Prosser and Keeton on Torts explains
the following with respect to claims involving the mishandling of a corpse:
“[T]he traditional rule has denied recovery for mere negligence, without
circumstances of aggravation. There are by now, however, a series of cases
allowing recovery for negligent embalming, negligent shipment, running over
the body, and the like, without such circumstances of aggravation. What all of
these cases appear to have in common is an especial likelihood of genuine and
serious mental distress, arising from the special circumstances, which serves as
a guarantee that the claim is not spurious. *** Where the guarantee can be
found, and the mental distress is undoubtedly real and serious, there may be no
good reason to deny recovery.” Prosser and Keeton on the Law of Torts § 54, at
362 (W. Page Keeton et al. eds., 5th ed. 1984).
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As for the series of cases that now allow the recovery of emotional distress
damages in cases involving negligent interference with the right to possess a
corpse, we direct the reader to the appellate court’s opinion below, which contains
an expansive citation to relevant decisions from 22 separate jurisdictions, which
citation we need not reproduce here. 2016 IL App (4th) 150791, ¶ 51.
¶ 26 The only question that remains, then, is whether plaintiff’s third amended
complaint states a claim for which relief may be granted. After reviewing the
allegations of that complaint, we conclude that it does. In relevant part, plaintiff’s
third amended complaint alleges that, as Walter’s mother and next of kin, plaintiff
had a right to possess and make appropriate disposition of Walter’s remains.
Plaintiff alleges further that, following Walter’s death, Walter’s body was delivered
to the Memorial morgue, where defendant’s employees were responsible for
receiving it, ensuring that an accurate identity tag was placed visibly upon it,
correctly logging its identity and location in the morgue, and ensuring that it was
released only to the correct funeral home. Plaintiff then alleges that, in this
capacity, defendant and its employees had a duty not to interfere with plaintiff’s
right to possess Walter’s remains, which duty they breached in no less than the six
following ways:
(1) failing to follow hospital policies governing the identification and
processing of dead bodies in the morgue,
(2) failing to keep an accurate log that correctly recorded the identity and
location of bodies in the Memorial morgue,
(3) violating hospital and industry standards by releasing the wrong body to
representatives of a funeral home,
(4) violating hospital and industry standards by releasing a misidentified
body to representatives of a funeral home,
(5) releasing a body to representatives of a funeral home when they knew or
should have known that the body did not match the description of the body to be
transported, and
(6) violating hospital and industry standards by relying entirely on an
erroneous logbook entry to confirm the identity of a body in the morgue.
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Finally, plaintiff alleges that, as a proximate result of defendant’s acts and
omissions, plaintiff experienced and suffered severe emotional distress, mental
suffering, embarrassment, humiliation, and financial losses, all of which were the
foreseeable consequence of defendant’s negligence. In short, plaintiff’s third
amended complaint properly alleges a legally cognizable duty, a breach of that duty
by defendant, and injuries proximately caused by that breach. Taking these
well-pleaded facts as true, we conclude that plaintiff’s third amended complaint
states a claim for tortious interference with the right to possess a corpse. The trial
court therefore erred in granting defendant’s section 2-615 motion to dismiss.
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, we affirm the judgment of the appellate court and
remand the cause to the circuit court for further proceedings consistent with this
opinion.
¶ 29 Appellate court judgment affirmed.
¶ 30 Cause remanded.
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