Dampier v. Wayne County

592 N.W.2d 809 (1999) 233 Mich. App. 714

Johnnie B. DAMPIER, Senida Merritt, Beverly Jasper Williams, Warna Nelson, Larry Dampier and Robert Williams, Plaintiff-Appellants,
v.
Grace Hospital Corporation, d/b/a Grace Northwest Hospital, and Stinson Funeral Home, Inc., Defendants, and
CHARTER COUNTY OF WAYNE, Defendant-Appellee.

Docket No. 202200.

Court of Appeals of Michigan.

Submitted October 20, 1998, at Detroit. Decided February 5, 1999, at 9:05 a.m. Released for Publication April 21, 1999.

Steinberg, O'Connor, Paton & Burns, P.L.L.C. (by Richard L. Steinberg), Detroit, for the plaintiffs.

Jennifer M. Granholm, Corporation Counsel, and Ellen E. Mason, Assistant Corporation Counsel, Detroit, for the defendant.

Before: MARKEY, P.J., and SAWYER and WHITBECK, JJ.

WHITBECK, J.

The trial court granted summary disposition with respect to all elements of this case, basically on the ground of governmental immunity. Plaintiffs appeal as of right on the grounds that both the statutory public hospital and common-law exceptions to governmental immunity apply to their negligence claim and that they stated claims for violations of the Michigan Constitution for which governmental immunity is unavailable. Plaintiffs also argue that the trial court should have permitted them to file a second amended complaint to assert a claim for violating the United States Constitution. We affirm with respect to the trial court's grant of governmental immunity but reverse and remand to permit the filing of a second amended complaint asserting a federal constitutional claim.

I. Basic Facts and Procedural History

The basic facts of this matter are fairly straightforward, if somewhat grisly, but the procedural history is reasonably complex. The unfortunate train of events commenced in July of 1995, when William Dampier, husband of plaintiff Johnnie Dampier, was transported to Grace Hospital after suffering a heart attack. William Dampier was pronounced dead shortly after his arrival at the hospital. Johnnie Dampier requested that an autopsy be conducted to determine the exact cause of William Dampier's death. William Dampier's remains were kept in the care, custody, and control of Grace Hospital, which thereafter entrusted the remains to Wayne County. Wayne County, in turn, entrusted the remains to Stinson Funeral Home. Stinson permitted plaintiffs to view William Dampier's remains, whereupon they made the macabre discovery that the remains had been allowed to decompose to a "ghastly and grotesque sight."

Plaintiffs thereafter filed this case, alleging a claim of negligence against Wayne County, Grace Hospital, and Stinson and a claim for intentional infliction of emotional distress against Stinson. In July of 1996, the trial court granted Wayne County's first motion for summary disposition on the basis that Wayne County was immune with respect to plaintiffs' claims. Plaintiffs then filed a motion to vacate entry of this order on the ground that the order failed to state accurately the bases of the trial court's ruling. The trial court granted the motion, vacated the order, and permitted plaintiffs to file a first amended complaint to allege contract and state constitutional claims against Wayne County.

In their first amended complaint, plaintiffs added claims against Wayne County for breach of a contract delegated to it by Grace Hospital and violation of the Due Process Clause of the Michigan Constitution. Plaintiffs failed to respond in writing to Wayne County's motion for summary disposition, but orally asserted at the ensuing hearing that they had stated a viable state constitutional claim to which Wayne County was not immune.

After the trial court indicated it was going to grant Wayne County's motion, plaintiffs orally moved for leave to file a second amended complaint to allege a federal constitutional claim against Wayne County pursuant to 42 USC 1983, for violation of their due process rights under the Fourteenth Amendment. The trial court orally denied this motion and thereafter entered an order granting Wayne County's motion for summary disposition with respect to the claims in plaintiffs' first amended complaint and denying plaintiffs' motion for leave to file a second amended complaint. Thereafter, the trial court dismissed Grace Hospital and Stinson from the suit without prejudice.

II. Standard of Review

A. Generally

This Court reviews de novo an order granting summary disposition. Weisman v. U S Blades, Inc., 217 Mich.App. 565, 566, 552 N.W.2d 484 (1996).

B. Governmental Immunity

"Summary disposition is proper under MCR 2.116(C)(7) for a claim that is barred because of immunity granted by law." Smith v. Kowalski, 223 Mich.App. 610, 616, 567 N.W.2d 463 (1997). When reviewing a grant of summary disposition based on governmental immunity, this Court considers all documentary evidence submitted by the parties. Id. "All well-pleaded allegations are accepted as true and construed in favor of the nonmoving party." Id. To survive a motion for summary disposition under MCR 2.116(C)(7), the plaintiff must allege facts warranting application of an exception to governmental immunity. Id.

C. Failure to State a Claim Upon Which Relief May be Granted

"Pursuant to MCR 2.116(C)(8), a motion for summary disposition is granted if the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery." Simko v. Blake, 448 Mich. 648, 654, 532 N.W.2d 842 (1995). A motion for summary disposition under MCR 2.116(C)(8) is tested on the pleadings alone; all factual allegations contained in the complaint must be accepted as true. Id.

D. Amendment of the Complaint

Leave to amend a complaint should be freely given when justice so requires. MCR 2.118(A)(2). Hakari v. Ski Brule, Inc., 230 Mich.App. 352, 355, 584 N.W.2d 345 (1998). This Court will reverse a trial court's decision on a motion to amend a complaint only where the trial court abused its discretion. Id.

E. Breach Of Contract

In support of its motion for summary disposition of plaintiffs' first amended complaint, Wayne County attached the affidavit of Sawait Kanluen, M.D., Wayne County Medical Examiner. Therefore, because the parties and the trial court went beyond the pleadings with regard to this issue, we address this issue pursuant to MCR 2.116(C)(10). W B Cenac Medical Service, PC v. Michigan Physicians Mut. Liability Co., 174 Mich.App. 676, 681, 436 N.W.2d 430 (1989).

A motion for summary disposition brought under MCR 2.116(C)(10), based on the lack of a genuine issue of material fact, tests whether there is factual support for the claim. Cenac, supra at 681, 436 N.W.2d 430. In ruling on the motion, the trial court must consider the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties. Id. The opposing party must show that a genuine issue of material fact exists. Id. The opposing party may not rest upon mere allegations or denials in the pleadings but must, by affidavit or other documentary evidence, set forth specific facts showing the existence of a genuine issue for trial. Id. If the opposing party fails to make such a showing, summary disposition is appropriate. Id.

III. Governmental Immunity

A. Introduction

Plaintiffs argue (1) that the Wayne County Morgue constitutes a public hospital, of which William Dampier was a patient, so that the public hospital exception to immunity applies, (2) that a common-law exception to immunity exists for the mishandling of a decedent's remains, and (3) that Wayne County is not immune with respect to plaintiffs' state constitutional claim for violation of their property right in William Dampier's remains.^[1] We address each possible exception below.

B. Public Hospital Exception

MCL 691.1407; MSA 3.996(107) governs the application of governmental immunity from tort liability and provides:

(1) Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.

* * * * * *

(4) This act does not grant immunity to a governmental agency with respect to the ownership or operation of a hospital or county medical care facility or to the agents or employees of such hospital or county medical care facility. As used in this subsection:

* * * * * *

(b) "Hospital" means a facility offering inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual with a medical, surgical, obstetric, chronic, or rehabilitative condition requiring the daily direction or supervision of a physician. The term does not include a hospital owned or operated by the department of mental health or a hospital operated by the department of corrections.

Neither party disputes the characterization of the operation of the Wayne County Morgue as a governmental function. Plaintiffs argue that the Wayne County Morgue constitutes a public hospital for the operation of which Wayne County is not entitled to immunity, pursuant to M.C.L. § 691.1407; MSA 3.996(107) We disagree.

The definition of public hospital provided in the statute controls. Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 136, 545 N.W.2d 642 (1996). Plaintiffs further argue that the Michigan Supreme Court, in Bendford v. Nat'l Life & Accident Ins. Co., 356 Mich. 52, 60-62, 96 N.W.2d 113 (1959), determined that a deceased person undergoing an autopsy constitutes a patient of the medical examiner and that the autopsy constitutes the medical treatment of a patient. Plaintiffs have misconstrued the Court's holding in Bendford.

In Bendford, id. at 61-62, 96 N.W.2d 113, the Court determined that the testimony of the attending physician who conducted the autopsy on the plaintiff's decedent was privileged and, therefore, was inadmissible at trial, because the physician testified that he had treated the decedent during the twelve days preceding death and based his opinion regarding the cause of death not only on the autopsy results but also on records made in connection with the decedent's treatment before death, which records were indisputably privileged. The Court never directly addressed whether a decedent whose body had only been examined by a medical examiner for the purposes of conducting a postmortem examination qualified as a patient of the examiner and whether the examination constituted treatment.

In contrast, in a similar context involving the question of doctor-patient privilege, the Court, in Swickard v. Wayne Co. Medical Examiner, 438 Mich. 536, 560-561, 475 N.W.2d 304 (1991), determined that information obtained from an autopsy was not privileged and therefore not exempt from disclosure under the Freedom of Information Act. Id. See also Estate of Green v. St. Clair Co. Rd. Comm., 175 Mich.App. 478, 489, 438 N.W.2d 630 (1989). There was no indication in Swickard that the plaintiffs sought to obtain any information regarding the treatment of the decedent other than that included in the autopsy report and no indication that the medical examiner had treated the decedent before his death. The Court stated, "Certainly, when a doctor performs an autopsy, the doctor is not prescribing treatment for the deceased; nor is the doctor performing surgery." Swickard, supra at 561, 475 N.W.2d 304. Thus, in light of Swickard, we hold that the morgue fails to qualify as a hospital for purposes of the public hospital exception to governmental immunity.

However, even if we were to accept plaintiffs' argument that the morgue offered inpatient, overnight care, and services for observation and diagnosis of William Dampier as an individual with a medical condition, plaintiffs have failed to establish that the remaining requirements set forth in the statute are satisfied. The statute states, "Hospital' means a facility offering inpatient, overnight care, and services for observation, diagnosis, and active treatment of an individual." MCL 691.1407(4)(b); MSA 3.996(107)(4)(b) (emphasis added).

In construing a statute, the court should presume that every word has some meaning and should avoid any construction that would render a statute, or any part of it, surplusage or nugatory. As far as possible, effect should be given to every phrase, clause, and word. Although frequently misused and more readily departed from than other words, the literal meaning of the words "and" or "or" should be followed if their accurate reading does not render the sense dubious. [Indenbaum v. Michigan Bd. of Medicine (After Remand), 213 Mich.App. 263, 272, 539 N.W.2d 574 (1995) (citations omitted).]

According to the Court in Swickard, supra at 561, 475 N.W.2d 304, "when a doctor performs an autopsy, the doctor is not prescribing treatment for the deceased" (emphasis added). The governmental immunity statute requires that, in order to constitute a hospital, a facility must offer services for the observation, diagnosis, and active treatment of an individual. MCL 691.1407(4)(b); MSA 3.996(107)(4)(b). Because, according to Swickard, a doctor performing an autopsy is not rendering treatment to the deceased, the Wayne County Morgue is not a facility offering services for the treatment of an individual. As such, the Wayne County Morgue is not a hospital within the meaning of the statute.

This interpretation is further supported by this Court's holding in Green, supra at 489, 438 N.W.2d 630, where the Court stated that the medical examiner's performance of an autopsy on Green did not render him a patient of the examiner. Because Wayne County allegedly took possession of William Dampier's remains for the purpose of performing an autopsy, William Dampier was not a patient of the Wayne County Medical Examiner. Accordingly, the Wayne County Morgue is not a facility offering inpatient care. MCL 691.1407(4)(b); MSA 3.996(107)(4)(b); Indenbaum, supra at 272, 539 N.W.2d 574.

Plaintiffs have also misconstrued the plain language of the statute regarding the requirement of daily direction or supervision of a physician. Plaintiffs argue that the operation of the morgue requires the daily direction or supervision of a physician. However, the statute states that it is the observation, diagnosis, and active treatment of an individual, and not the operation of the facility itself, that requires the daily direction or supervision of a physician. MCL 691.1407(4)(b); MSA 3.996(107)(4)(b). Because the morgue does not offer treatment to individuals, and because the individuals on whom autopsies are performed are not patients, the morgue is not a hospital.

In summary, and accepting as true all of plaintiffs' well-pleaded allegations and construing them in favor of plaintiffs, plaintiffs have failed to allege facts warranting the application of the public hospital exception to governmental immunity to plaintiffs' claims. MCL 691.1407; MSA 3.996(107); Kowalski, supra at 616, 567 N.W.2d 463.

C. Common-Law Exception

Plaintiffs argue that a common-law exception to governmental immunity exists for the mishandling of a decedent's remains. Plaintiffs contend that M.C.L. § 691.1407;

MSA 3.996(107) has been construed to mean that all exceptions to governmental immunity that existed at common-law before July 1, 1965, survive the statutory enactment of governmental immunity. Further, plaintiffs argue that a common-law exception to governmental immunity for the mutilation of a dead body existed before July 1, 1965, and that this exception survives the enactment of the immunity statute.

The last sentence of subsection 1 of § 7 of the governmental immunity statute, M.C.L. § 691.1407(1); MSA 3.996(107)(1), provides:

Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.

In accordance with this sentence, the Michigan Supreme Court has recognized a common-law trespass-nuisance exception to immunity. Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 148-149, 204-205, 209, 213, 422 N.W.2d 205 (1988). Plaintiffs argue that Deeg v. Detroit, 345 Mich. 371, 76 N.W.2d 16 (1956), establishes an additional common-law exception to immunity for the unlawful and intentional mutilation of a dead body and that this exception applies to plaintiffs' claims so that summary disposition for Wayne County was improper. While we agree that Michigan law does recognize an actionable claim for the mutilation of a dead body, such a claim is not viable here.

"Michigan jurisprudence recognizes a common law cause of action on behalf of the person or persons entitled to the possession, control, or burial of a dead body for the tort of interference with the right of burial of a deceased person without mutilation." Tillman v. Detroit Receiving Hosp., 138 Mich.App. 683, 687, 360 N.W.2d 275 (1984). See also Deeg, supra at 375, 76 N.W.2d 16, Nelson v. Crawford, 122 Mich. 466, 470, 81 N.W. 335 (1899), overruled on other grounds Daley v. LaCroix, 384 Mich. 4, 179 N.W.2d 390 (1970), Kelly-Nevils v. Detroit Receiving Hosp., 207 Mich.App. 410, 526 N.W.2d 15 (1994), and Larson v. Chase, 47 Minn. 307, 310, 50 N.W. 238 (1891) (cited with approval in Nelson, supra).

Plaintiffs rely heavily on Deeg, supra at 375, 76 N.W.2d 16, in support of their claim. However, in Deeg, as well as in all of the cases cited, the plaintiff brought an action for the allegedly wrongful dissection of, or removal of organs from, the body. Specifically, in Deeg, the plaintiff, wife of the decedent, brought an action against the city of Detroit because the city had conducted an autopsy on, and had removed organs from, the body of her husband without her consent. Id. at 377, 76 N.W.2d 16. The Supreme Court recognized a claim on behalf of the plaintiff for the actions of the city, but also determined that her claim had not survived her death. Id. at 379, 76 N.W.2d 16.

Similarly, in Kelly-Nevils, Tillman, and Larson, the plaintiffs brought claims against the defendants for the wrongful mutilation of a dead body as a result of autopsies or organ harvesting conducted without the consent of the next of kin. While Nelson, supra at 470, 81 N.W. 335, did not deal with a claim based on the mutilation of a dead body, it did cite with approval Larson, supra, for the proposition that a plaintiff may recover damages for the mutilation of a dead body in which the plaintiff had a legal right. Thus, all of the Michigan cases that discuss this common-law claim involved the alleged evisceration or dismemberment of a dead body.

Accordingly, we hold that a cognizable claim for the mutilation of a dead body is not sufficiently broad to encompass a claim for its decomposition, which does not involve the active incision, dismemberment, or evisceration of the body, because "any exceptions to [the] grant of immunity are [to be] narrowly construed." Vargo v. Sauer, 215 Mich.App. 389, 395-396, 547 N.W.2d 40 (1996), rev'd on other grounds 457 Mich. 49, 576 N.W.2d 656 (1998). Wayne County is therefore immune from plaintiffs' common-law claim.

D. Violation of the Michigan Constitution

Plaintiffs' final claim in regard to Wayne County's immunity defense is that, pursuant to Const 1963, art 1, § 17, they have a constitutionally protected property right in William Dampier's body, that Wayne County violated that right by allegedly allowing the body to decompose, and that Wayne County is not entitled to immunity for a constitutional violation. Plaintiffs rely on Whaley v. Saginaw Co., 941 F.Supp. 1483 (E.D.Mich., 1996) in support of their claim.

In Whaley, id. at 1486-1487, the plaintiffs argued, pursuant to 42 USC 1983, that they had been deprived of federal constitutional property rights in the corneas of their decedents because the corneas were removed without their consent pursuant to Michigan's Anatomical Gifts Act, M.C.L. § 333.10202; MSA 14.15(10202), in violation of due process. The district court agreed, applying the holding the Sixth Circuit Court of Appeals had reached in an earlier stage of the proceedings, reported sub nom Whaley v. Tuscola Co., 58 F.3d 1111 (C.A.6, 1995), that such a right existed, and then proceeded to determine that a genuine issue of material fact existed regarding whether the defendants removed the corneas without permission pursuant to department policy. Accordingly, the district court determined that its earlier grant of summary judgment for the defendants was improper. Whaley, supra, 941 F.Supp. at 1493. We hold that the Whaley decisions do not support plaintiffs' state constitutional claim.

Initially, we note that Wayne County argues that the Michigan Legislature has not enacted any enabling legislation similar to 42 USC 1983, and that, until such legislation is enacted, plaintiffs have no means by which to enforce Const 1963, art 1, § 17. We disagree. This Court has previously determined that those provisions of the Michigan Constitution that protect individual rights do not "require implementing legislation in order to operate as a limitation on the exercise of governmental power." Detroit Branch, NAACP v. Dearborn, 173 Mich.App. 602, 614, 434 N.W.2d 444 (1988).^[2] Therefore, the lack of enabling legislation would not preclude plaintiffs' claim.

However, we hold that plaintiffs' constitutional claim fails because Michigan does not recognize a property right in a dead body. As plainly stated by this Court, "there is no property right in the next of kin to a dead body." Tillman, supra at 686-687, 360 N.W.2d 275, citing Deeg, supra at 375, 76 N.W.2d 16. Furthermore, this Court, in Tillman determined that the common-law right of burial of a deceased person without mutilation, discussed earlier, is not of constitutional dimension. Id. at 687, 360 N.W.2d 275.

Moreover, while they may be considered persuasive, the Whaley decisions are not dispositive of the claim at hand, because the Whaley decisions are federal court cases construing the federal constitution and are not binding precedent with respect to interpretations of the state constitution. Cf. State Bd. of Ed. v. Houghton Lake Community Schools, 430 Mich. 658, 675, 425 N.W.2d 80 (1988). Accordingly, because plaintiffs failed to allege the violation of a state constitutional right, the trial court's grant of summary disposition on this basis was proper.

IV. Failure To State A Claim Upon Which Relief Could Be Granted

A. Introduction

Plaintiffs assert that Wayne County erroneously argued (1) that it could not be sued for state constitutional violations, (2) that enabling legislation is required for plaintiffs to bring a claim for violation of a constitutional right, and (3) that plaintiffs failed to state a claim for the violation of the common-law right to the peaceful burial of William Dampier's body because, even if Michigan recognized such a claim, Wayne County is immune to it. Plaintiffs also argued that they had established that Wayne County acted pursuant to a custom or policy that resulted in the deprivation of their state constitutional rights. We address each of plaintiffs' arguments below.

B. Alleged State Constitutional Violations

We have held above that the Michigan Constitution does not recognize a constitutional property interest in the body of a decedent. Because plaintiffs have failed to state a claim for violation of the Michigan Constitution, whether a county government may be sued for a constitutional violation is immaterial to a decision in this case. Therefore, this Court need not consider the issue. State ex rel. Saginaw Prosecuting Attorney v. Bobenal Investments, Inc., 111 Mich.App. 16, 26, 314 N.W.2d 512 (1981).

C. Enabling Legislation As A Prerequisite For Suit

We have held above that enabling legislation is not a prerequisite for bringing suit for violations of Const 1963, art 1, § 17, pursuant to NAACP, supra at 614, 434 N.W.2d 444.

D. Deprivation Of Body Or Body Parts

We have held above that Michigan does not recognize a right of constitutional dimension in a dead body. Therefore, it is immaterial to a decision in this case whether Wayne County actually withheld William Dampier's body or body parts from plaintiffs.

E. Custom Or Policy

To prove a state constitutional violation against a governmental defendant, in addition to proving the violation, a plaintiff must plead and prove facts to establish that the defendant acted pursuant to a governmental custom or policy. See Johnson v. Wayne Co., 213 Mich.App. 143, 150, 162, 540 N.W.2d 66 (1995); Marlin v. Detroit (After Remand), 205 Mich.App. 335, 338, 517 N.W.2d 305 (1994). We have held above that no cognizable state constitutional violation occurred in this case. Therefore, whether Wayne County acted pursuant to a county custom or policy in handling William Dampier's remains is irrelevant to our decision.

V. Amendment Of Complaint

MCR 2.118(A)(2) provides: "Except as provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires."

A motion to amend ordinarily should be granted, and denied only for particularized reasons:

"... such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc...."

To safeguard and implement the policy favoring amendment, this Court has directed that upon denial of a motion to amend "such exercise of discretion should be supported by specific findings as to reasons for the same." [Ben P Fyke & Sons v. Gunter Co., 390 Mich. 649, 656, 213 N.W.2d 134 (1973) (emphasis in original).]

"A court must specify one of the Fyke reasons in its denial, and a failure to do so constitutes error requiring a reversal unless such amendment would be futile." Terhaar v. Hoekwater, 182 Mich.App. 747, 751, 452 N.W.2d 905 (1990).

Here, plaintiffs, first orally and then in writing, moved in the trial court to be permitted to file a second amended complaint to include a claim for violation of the Fourteenth Amendment of the United States Constitution brought pursuant to 42 USC 1983. The trial court denied these motions. However, neither at the conclusion of the hearing with respect to Wayne County's motion for summary disposition of the claims in plaintiffs' first amended complaint nor in its order did the trial court specify the reasons for denying plaintiffs' motion to file a second amended complaint alleging a violation of 42 USC 1983, except to say at the hearing: "I'm going to deny because when the Court of Appeals is going to end up deciding this case, they can decide it all at once so that it doesn't go back and forth piece meal. So, let me formally deny that. You can put that in the order." Therefore, unless amendment of the complaint would have been futile, the trial court's denial of plaintiffs' motion was error requiring reversal. Terhaar, supra at 751, 452 N.W.2d 905.

The Fourteenth Amendment of the United States Constitution provides that "[no state shall] deprive any person of life, liberty, or property, without due process of law." US Const, Am XIV, § 1. To enforce this amendment, Congress also enacted 42 USC 1983. Federal court decisions construing federal law are highly persuasive precedent. Auto Club Ins. Ass'n v. Frederick & Herrud, Inc. (On Remand), 191 Mich.App. 471, 474, 479 N.W.2d 18 (1991), aff'd. 443 Mich. 358, 505 N.W.2d 820 (1993). Therefore, if the Fourteenth Amendment, as enabled by 42 USC 1983, recognizes a claim for the unconstitutional deprivation of property in the mishandling of a decedent's remains, amendment of plaintiffs' complaint would not have been futile, and the trial court's denial of plaintiffs' motion constituted error requiring reversal. Terhaar, supra at 751, 452 N.W.2d 905.

We hold that plaintiffs could have presented a claim that is cognizable under the Fourteenth Amendment of the United States Constitution if the trial court had allowed them to file a second amended complaint. In support of this potential claim, plaintiffs rely principally on Whaley, supra, 941 F.Supp. 1483. Whaley involved claims based on the removal of the plaintiffs' decedents' corneas without the plaintiffs' consent. In contrast, in the present case, no actual invasion of William Dampier's body occurred, and Wayne County did not prevent plaintiffs from obtaining his body or any of its parts. Nonetheless, we hold that the discussions by the federal district court and the federal circuit court concerning the nature of the claim indicate that federal law would recognize a claim based on the mishandling of a decedent's remains as a result of which the remains decompose.^[3]

Here, accepting as true the factual allegations that plaintiffs would ostensibly have pleaded in their second amended complaint and any reasonable inferences or conclusions that can be drawn from the facts, we hold that plaintiffs would have stated a federal constitutional claim for violation of their property right in William Dampier's body if the trial court had permitted them to amend their complaint. When plaintiffs obtained possession of the body, it was badly decomposed and therefore damaged. It is also reasonable to infer from this fact that the body was not delivered to plaintiffs in the condition as it was when death came. Simko, supra at 654, 532 N.W.2d 842; Doxtator v. Chicago & W M R Co, 120 Mich. 596, 597, 79 N.W. 922 (1899). Thus, we hold that plaintiffs have alleged an interference with their federal constitutional property right, pursuant to the Whaley decisions.

However, interference with a constitutional property right is insufficient in itself to give rise to a claim for violation of the Fourteenth Amendment pursuant to 42 USC 1983. In addition, plaintiffs must also establish that the interference was committed "under color of state law." Brotherton v. Cleveland, 923 F.2d 477, 479 (C.A.6, 1991). This requirement may be satisfied by establishing that defendants acted pursuant to governmental policy or custom. Whaley, supra, 941 F.Supp. at 1492. "Such a custom or policy must be ``the moving force of the constitutional violation.'" Id. Therefore, if plaintiffs alleged facts that could be developed to establish that Wayne County acted pursuant to a policy or custom that consequently resulted in the decomposition of William Dampier's remains, then plaintiffs' potential claim would not have been clearly unenforceable as a matter of law and the trial court's denial of plaintiffs' motion to amend their complaint was improper. Simko, supra at 654, 532 N.W.2d 842; Wade v. Dep't of Corrections, 439 Mich. 158, 163, 483 N.W.2d 26 (1992); Terhaar, supra at 751, 452 N.W.2d 905.

In their second amended complaint, which plaintiffs attached to their motion to amend, plaintiffs alleged that human remains were improperly cared for and allowed to decompose and deteriorate and that morgue officials failed to take the necessary action to preserve and protect the last remains entrusted to their care during a heat wave in July, 1995, which lack of action led to the decomposition of these remains. Accepting these factual allegations as true, we hold that plaintiffs' claim was not clearly unenforceable as a matter of law. Additional factual development may have justified a right of recovery if plaintiffs were successful in proving that Wayne County acted pursuant to custom or policy when it allegedly allowed William Dampier's remains to decompose. Simko, supra at 654, 532 N.W.2d 842. Thus, we hold that permitting plaintiffs to amend their complaint would not have been futile, so that the trial court's denial of plaintiffs' motion for leave to file a second amended complaint to assert a 42 USC 1983 claim was error requiring reversal. Terhaar, supra at 751, 452 N.W.2d 905.

In their second amended complaint, plaintiffs also allege that individual employees of Wayne County committed grossly negligent acts that resulted in the decomposition of William Dampier's remains. Plaintiffs did not name these employees in their complaint as defendants individually or in their official capacities. Thus, it appears that plaintiffs are seeking to hold Wayne County additionally liable under 42 USC 1983 for the actions of its employees pursuant to a theory of respondeat superior. Whaley, supra, 941 F.Supp. at 1494.

To succeed in a 42 USC 1983 claim based on a theory of respondeat superior, plaintiffs must prove, in addition to proving deprivation of a constitutional property right, that the government's agents acted pursuant to official policy. Whaley, supra, 941 F.Supp. at 1492. Where the allegedly unlawful policy is not itself unconstitutional, the negligence behind the deprivation is only indirectly a "moving force" behind the deprivation and cannot provide a basis for a 42 USC 1983 suit unless plaintiffs demonstrate deliberate indifference to their rights. Id. at 1494. "The concept of deliberate indifference implies that defendants knew or should have known that they were doing something ``wrong' or ``unconstitutional.'" Id.

In the present case, the allegedly unlawful policy of negligently monitoring and administering the morgue is not itself unconstitutional. Id. Therefore, plaintiffs must prove that Wayne County's employees acted with deliberate indifference to plaintiffs' rights. Id. We cannot find that Wayne County's employees acted with deliberate indifference to plaintiffs' constitutional rights.

In Whaley, the district court found that the defendant's agents could not have acted with deliberate indifference to the plaintiffs' constitutional rights because, at the time they did so, state law permitted them to remove the corneas from the plaintiffs' decedents without first obtaining consent. Id. The present case is quite similar. In particular, the decision of the Sixth Circuit Court of Appeals in Whaley, supra, 58 F.3d 1111, was the first case to find, based on Michigan law, such a due process claim in the property right to a dead body. Whaley, supra, 941 F.Supp. at 1493. The Sixth Circuit Court of Appeals decision was published July 12, 1995. Whaley, supra, 58 F.3d 1111. William Dampier died on July 25, 1995. Thus, only fourteen days passed between the date of publication of the Sixth Circuit Court of Appeals opinion in Whaley that, for the first time, established, on the basis of Michigan law, a federal right of constitutional dimension in a dead body, and the date of William Dampier's death. We hold, therefore, that plaintiffs' constitutional rights in William Dampier's body were not clearly established at the time of Wayne County's alleged negligent acts. Therefore, Wayne County's agents could not have acted with deliberate indifference to these rights, because "``the conclusion that [the constitutional rights alleged by plaintiffs] were not clearly established negates the proposition that the [defendants] acted with deliberate indifference.'" Whaley, supra, 941 F.Supp. at 1494, quoting Williamson v. Virginia Beach, 786 F.Supp. 1238, 1264-1265 (E.D.Va., 1992), aff'd. 991 F.2d 793 (C.A.4, 1993), and Zwalesky v. Manistee Co., 749 F.Supp. 815, 820 (W.D.Mich., 1990). Accordingly, we find that no factual development regarding the actions of Wayne County's employees would establish a 42 USC 1983 claim based on respondeat superior on which relief could be granted. Accordingly, Wayne County would be entitled to summary disposition for claims based on respondeat superior. Simko, supra at 654, 532 N.W.2d 842.

VI. Breach of Contract

In their first amended complaint, plaintiffs alleged that Grace Hospital had entered into an oral contract with plaintiffs under which the hospital agreed to conduct an autopsy on William Dampier's remains and that the hospital thereafter delegated the performance of the contract to Wayne County. Plaintiffs alleged that Wayne County breached the terms of the contract by failing to perform any autopsy and by failing to care properly for William Dampier's remains.

Wayne County responded to plaintiffs' first amended complaint with a motion for summary disposition. Wayne County asserted that no contract existed between it and Grace Hospital and that it never agreed with Grace Hospital or plaintiffs to conduct an autopsy on William Dampier's remains. Rather, Wayne County asserted that it conducts autopsies pursuant to statute and only on the medical examiner's determination that an autopsy is necessary and that, furthermore, this decision is discretionary and therefore entitled to immunity.

In support of these assertions, Wayne County attached the affidavit of Sawait Kanluen, M.D., the Chief Medical Examiner for Wayne County. In the affidavit, Dr. Kanluen swore to assertions that Wayne County's performance of autopsies is conducted pursuant to statute and on the decision of the examiner that an autopsy is necessary and that Wayne County did not enter into any contracts, oral or otherwise, with Grace Hospital to conduct autopsies.

Plaintiffs failed to respond to Wayne County's motion for summary disposition and did not argue this issue before the trial court. In failing to respond to Wayne County's motion, plaintiffs failed to set forth specific facts in opposition to Wayne County's evidence showing a genuine issue for trial. Because plaintiffs failed to make such a showing, summary disposition was appropriate. Cenac, supra at 681, 436 N.W.2d 430.

The trial court's grant of summary disposition for Wayne County with respect to plaintiffs' state law claims is affirmed. The trial court's denial of plaintiffs' motion to file a second amended complaint to assert a claim pursuant to 42 USC 1983, for violation of the plaintiffs' due process rights under the Fourteenth Amendment of the United States Constitution is reversed. The case is remanded, and on remand, the trial court shall permit plaintiffs to file such a second amended complaint. We do not retain jurisdiction.

Affirmed in part, reversed in part, and remanded.

In reaching its decision, the Sixth Circuit Court of Appeals referred to its earlier decision in Brotherton v. Cleveland, 923 F.2d 477, 482 (C.A.6, 1991), where the court, with regard to an issue of first impression concerning Ohio law, held that "the aggregate of rights granted by the state of Ohio to [the plaintiff] rises to the level of a ``legitimate claim of entitlement' in [the decedent's] body, including his corneas, protected by the due process clause of the fourteenth amendment." The court reached this decision despite the fact that Ohio avoided characterizing rights to control or possession of a dead body as sounding in property. Id. at 480, 482.

In deciding Brotherton, the Sixth Circuit Court of Appeals engaged in a general discussion of the concept of property, from the initial decisions of English courts in which the law did not recognize property rights in dead bodies, to the eventual understanding that "``it is now the prevailing rule in England as well as in this country, that the right to bury the dead and preserve the remains is a quasi-right in property.'" Id. at 481, quoting Spiegel v. Evergreen Cemetery Co., 117 N.J.L. 90, 93, 186 A. 585 (1936). In reaching its decision, the Sixth Circuit Court of Appeals stated that the denomination of the interest in the dead body by Ohio as property, quasiproperty, or not property was irrelevant to its determination. Brotherton, supra at 481-482. The Sixth Circuit Court of Appeals relied on its analysis in Brotherton, in deciding Whaley. As in Brotherton, supra at 482, the Whaley court determined that the manner in which Michigan chooses to characterize this right in a dead body was not dispositive of its decision, and expressly stated that the district court erred in relying on this characterization to reach its decision. Whaley, supra, 58 F.3d at 1116-1117. Thus, the Sixth Circuit Court of Appeals and district courts have recognized a federal right in a dead body that is of constitutional dimension. Furthermore, the discussion of the nature and scope of the right, as set forth in Whaley and Brotherton is sufficiently broad to encompass plaintiffs' claim that Wayne County violated their federal constitutional property right in allowing William Dampier's body to decompose. Neither the holding in Brotherton nor the holding in Whaley was limited to the removal of body parts, specifically corneas, from the body, or the actual withholding of possession of the body from the next of kin. Rather, these cases found a general property right in the dead body that was of constitutional dimension and that interference with or deprivation of this right amounted to a constitutional violation. Whaley, supra, 58 F.3d at 1115, and Brotherton, supra at 480, 482.

This is particularly true in light of the federal court's reliance on Ohio and Michigan cases that, as construed by the federal courts, provide a right of action to the next of kin for damage to the body or interference with possession of the body as it is when death comes. Whaley, supra, 58 F.3d at 1115. As stated above, the Sixth Circuit Court of Appeals did not believe that the fine distinctions made by the Ohio and Michigan courts regarding the labels to be assigned this right were of any particular significance to its decision and stated that the rights of the next of kin in the body were at the "heart and soul of the common law understanding of ``property.'" Id.

NOTES

[1] In the interest of clarity, we note that plaintiffs' common-law claim for the mishandling of a decedent's remains is distinct from their claim for violation of a state constitutional property right in these remains. Plaintiffs argue that the former claim constitutes an exception to governmental immunity because the claim was recognized before the enactment of the governmental immunity statute, M.C.L. § 691.1407; MSA 3.996(107), while the latter claim, as a constitutional claim, is not subject to immunity at all. In addition, plaintiffs argue that they possessed a federal constitutional property right in William Dampier's remains and that they should be permitted to bring a claim pursuant to 42 USC 1983, as will be discussed.

[2] We note that the same is not true for Const 1963, art 1, § 2 in suits involving private party defendants. This Court, in NAACP, supra at 613, 434 N.W.2d 444, stated, "Article 1, Sec. 2 is the only provision in the Michigan Constitution's declaration of rights to impose an affirmative obligation on the Legislature for implementation by appropriate legislation" relative to private parties. However, because plaintiffs have sued Wayne County, this distinction is not at issue in the present case.

[3] With regard to an issue of first impression utilizing Michigan law, the Sixth Circuit Court of Appeals, in Whaley, supra, 58 F.3d at 1115-1116, concluded, on the basis of Deeg, supra at 371, 76 N.W.2d 16, Doxtator v. Chicago & W M R Co, 120 Mich. 596, 597, 79 N.W. 922 (1899), and Keyes v. Konkel, 119 Mich. 550, 551, 78 N.W. 649 (1899), that Michigan does recognize a constitutionally protected (under the United States Constitution) property right in a dead body. The Sixth Circuit Court of Appeals held "that Michigan provides the next of kin with a constitutionally protected property interest in the dead body of a relative." Whaley, supra, 58 F.3d at 1116.