Massey v. Duke University

EAGLES, Chief Judge.

The sole issue on appeal is whether the trial court erred in granting defendants’ summary judgment motion. Summary judgment is to be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” G.S. 1A-1, Rule 56(c). While the moving party has the burden of proving there is no genuine issue of material fact

[t]he movant may meet this burden by proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which could bar the claim. (Citations omitted.) By making a motion for summary judgment, a defendant may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial.

Varner v. Bryan, 113 N.C. App. 697, 701, 440 S.E.2d 295, 298 (1994) (quoting Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)).

Plaintiffs’ complaint seeks relief for infliction of emotional distress due to mutilation of a dead body because the autopsy performed on their father went beyond the scope authorized by the family. Plaintiffs also seek punitive damages.

Our law recognizes that the next of kin has a quasi-property right in the body — not property in the commercial sense but a right of possession for the purpose of burial — and that there arises out of this relationship to the body an emotional interest which should be protected and which others have a duty not to injure intentionally or negligently .... Furthermore, the survivor has the legal right to bury the body as it was when life became extinct. Kyles v. R. R., supra. For any mutilation of a dead body the one entitled to its custody may recover compensatory damages for his mental suffering caused thereby if the mutilation was either intentionally or negligently committed, Morrow v. R. R., 213 N.C. 127, 195 S.E. 383, or was done by an unlawful autopsy. If defendant’s conduct was wilful or wanton, actually malicious, or grossly negligent, punitive damages may also be recovered. Kyles v. R. R., supra.

Parker v. Quinn-McGowen Co., 262 N.C. 560, 561-62, 138 S.E.2d 214, 215-16 (1964).

Defendants argue that plaintiffs authorized an unlimited autopsy of their father by signing a blank autopsy form and therefore have no cause of action. We disagree.

“[T]he duty to read an instrument or to have it read before signing it, is a positive one, and the failure to do so, in the absence of any mistake, fraud or oppression, is a circumstance against which no relief may be had, either at law or in equity.” Mills v. Lynch, 259 N.C. 359, 362, 130 S.E.2d 541, 543-44 (1963) (quoting Furst v. Merritt, 190 N.C. 397, 130 S.E. 40 (1925)).

To obtain relief from a contract on the ground of fraud, the complaining party must show: a false factual representation known to be false or made in culpable ignorance of its truth with a fraudulent intent, which representation is both material and reasonably relied upon by the party to whom it is made, who suffers injury as a result of such reliance.

Davis v. Davis, 256 N.C. 468, 471, 124 S.E.2d 130, 133 (1962).

One who signs a written contract without reading it, when he can do so understandingly is bound thereby unless the failure to read is justified by some special circumstance. (Citations omitted.) To escape the consequences of a failure to read because of special circumstances, complainant must have acted with reasonable prudence.

Id. at 472, 124 S.E.2d at 133.

Here the plaintiffs’ forecast of evidence is sufficient to raise a genuine issue of material fact as to the misrepresentation issue and the reasonable reliance issue such that the special circumstances exception may apply. Mr. Massey, Sr. died at 10:40 a.m. Two hours and twenty minutes later Dr. Abernethy asked the Massey family whether they would consider donating any of their father’s organs and whether they wanted an autopsy performed. The Masseys were very emotional after being told of their father’s unexpected death and were relying on Dr. Abernethy’s expertise as a doctor. The Masseys clearly told Dr. Abernethy that they did not want their father’s eyes donated and they were not interested in any organ donation. The emotional state the Masseys were in two and a half hours after their father’s unexpected death constitutes special circumstances and excuses Mr. Massey, Jr.’s failure to read the autopsy release form. Mr. Massey, Jr. made it clear to Dr. Abernethy that organ donation was out of the question. In light of his father’s unexpected death earlier that day, Mr. Massey, Jr. justifiable relied on Dr. Abemethy to ensure that the family’s orally-expressed wishes were followed.

Moreover, there is a genuine issue of material fact as to whether the defendant Dr. Abernethy misrepresented to the plaintiffs the extent and intrusive nature of “standard” autopsies performed at Duke Medical Center. The parties’ evidence differs as to what was said when the autopsy was discussed.

The parties do not dispute that plaintiffs told Dr. Abemethy that they did not want their father’s eyes donated. Dr. Abernethy and the Masseys also discussed whether the family wanted an autopsy performed on Mr. Massey, Sr. Plaintiffs contend that after Dr. Abernethy asked whether plaintiffs wanted an autopsy performed, Willie Massey, Jr. asked the doctor if the autopsy would require the removal of any organs from his father’s body. Willie Massey, Jr. reiterated that they did not want to bury their father “with any body parts missing.” Plaintiffs’ evidence is that Dr. Abernethy assured the Massey family that the autopsy would not require the removal of organs. On the other hand, defendants contend that the family placed no limitations on the autopsy, that the normal autopsy procedure followed by Duke University includes removal of the eyes, and that the autopsy did not exceed the scope authorized by the plaintiffs. Given this factual dispute over what happened during the autopsy discussion, summary judgment was inappropriate.

In addition, whether reliance on a party’s alleged misrepresentation was reasonable generally is a question of fact for the jury. Northwestern Bank v. Roseman, 81 N.C. App. 228, 234, 344 S.E.2d 120, 124 (1986). It is only in exceptional cases that the issue of reasonable reliance on an alleged misrepresentation may be decided by summary judgment. Id., 344 S.E.2d at 125. Accordingly, the trial court erred in granting defendants’ summary judgment motion.

However, because the plaintiffs did not argue in their brief that summary judgment as to the punitive damages claim was inappropriate, pursuant to N.C.R. App. R 28(b)(5), their appeal from summary judgment as to the punitive damages claim is deemed abandoned. Accordingly, the trial court’s summary judgment motion as to the plaintiffs’ punitive damages claim is affirmed.

Affirmed in part and reversed in part.

Judges JOHN and TIMMONS-GOODSON concur.