Carney v. Knollwood Cemetery Assn.

I concur separately because I find that the trial court erred by allowing the jury to consider the claim of emotional distress; the plaintiffs failed to establish serious injury or foreseeability.

The plaintiffs failed to establish that their injuries were foreseeable. Paragraph 3b of the syllabus of Paugh v. Hanks (1983), 6 Ohio St. 3d 72, 6 OBR 114, 451 N.E.2d 759,¹¹ established the factors that must be balanced to determine if an injury is foreseeable:

"3b. The factors to be considered in order to determine whether a negligently inflicted emotional injury was reasonably foreseeable include: (1) whether the plaintiff was located near the scene of the accident, as contrasted with one who was a distance away; (2) whether the shock resulted from a direct emotional impact upon the plaintiff from sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) whether the plaintiff and victim (if any) were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship."

The application of these three factors to the evidence demonstrates that as a matter of law an ordinary man under such circumstances should not have foreseen the resulting harm. Id. at 79, 6 OBR at 120, 451 N.E.2d at 766.

The first factor given by the Paugh court is whether the plaintiff was located near the scene of the accident, as contrasted with one who was a distance away. In the instant case, the plaintiffs were not present when the body was disinterred. In fact, they did not become aware of the "accident" until six months had gone by. The second factor is whether the shock results from a direct emotional impact upon the plaintiff from sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. The plaintiffs learned about the event from others after its occurrence. The third factor is whether the plaintiff and victim (if any) were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

The body disinterred was that of Katherine G. Mallison. She was the mother of one plaintiff, and the grandmother of the remaining three plaintiffs. This criterion is dispositive of the claims of Richard and Peter Carney. The evidence indicated that they had never met Katherine G. Mallison because she died over twenty years before they were born. The remaining grandchild, Katherine Howard, did know the decedent for four years when she was a young child. Mary Klein, the remaining plaintiff, was the daughter of Katherine Mallison. The third factor is not clearly dispositive of Klein's and Howard's claim. However, the other factors are not overbalanced by this relationship.

The requirement of serious emotional injury is not met in this case. The Paugh court stated at 78, 6 OBR at 119,451 N.E.2d at 765:

"In delineating the standards to guide Ohio courts in reviewing cases seeking damages for the negligent infliction of serious emotional distress, we wish to underscore the element of `seriousness' as a necessary component required for a plaintiff-bystander in order to sufficiently state a claim for relief. We view the standard of `serious' emotional distress as being a more reliable safeguard than an `ensuing physical injury' requirement in screening out legitimate claims. By the term `serious,' we of course go beyond trifling mental disturbance, mere upset or hurt feelings. We believe that serious emotional distress describes emotional injury which is both severe and debilitating. Thus, serious emotional distress may be found where a reasonable person, normally constituted, would be unable to cope adequately with the mental distress engendered by the circumstances of the case. Rodrigues v. State (1970),52 Haw., 472 P.2d 509; Leong [v. Takasaki (1974), 55 Haw.,520 P.2d 758], supra; Molien [v. Kaiser Foundation Hospitals (1980),27 Cal. 3d 916, 167 Cal. Rptr. 831, 616 P.2d 813], supra."

In the instant case, the three grandchildren testified that they were upset and lost sleep. One testified that she felt physically ill when she learned of the occurrence; another testified that he cried when he learned of the occurrence; the third grandchild testified that he was so upset that it affected his work. None of these plaintiffs sought medical aid, nor did they become debilitated. As a matter of law, these injuries are not "serious" or "debilitating."

Mary Klein, the daughter of Katherine Mallison, did not testify at trial. Her daughter, Katherine Howard, testified that the only indication of emotional distress made by Klein was her comment upon learning of the occurrence: "`Wouldn't it be better to let memories be.'" This evidence, standing by itself, is insufficient to demonstrate serious emotional injury.

The plaintiffs have proved an independent claim. Desecration of a corpse is a recognized cause of action in Ohio. Brownlee v.Pratt (1946), 77 Ohio App. 553, 33 Ohio Op. 356, 68 N.E.2d 798. The defendant premised its defense to this action on two points: the standing of the plaintiffs to recover, and the argument that a separate corporate entity, not named in this action, was the responsible party.

The challenge to the plaintiffs' standing was not made in a timely manner. Standing is an affirmative defense. Civ. R. 8(C). The failure to plead an affirmative defense constitutes a waiver.Houser v. Ohio Historical Society (1980), 62 Ohio St. 2d 77, 16 Ohio Op. 3d 67, 403 N.E.2d 965. The court correctly allowed the jury to consider all of the claims.

The appellants' second defense at trial is not raised on appeal.

The plaintiffs presented a prima facie case of desecration of a grave. It was within the jury's purview to render a verdict for the plaintiffs on this claim.

The jury rendered a general verdict for plaintiffs. This verdict is presumed to have been returned on the viable claim.Sites v. Haverstick (1873), 23 Ohio St. 626; McCarthy v.Kasperak (1981), 3 Ohio App. 3d 206, 3 OBR 234, 444 N.E.2d 472. Therefore, I concur in the court's affirmance of this judgment.

I concur with the majority's reasoning relative to the award of punitive damages. I write separately to emphasize the facts that underlie the award.

Conflicting testimony was presented at trial concerning the disinterment of Katherine Mallison. Three grave diggers testified, presenting a consistent story. However, the supervisors, who were present, gave a different story; the choice between these versions was the jury's.

The grave diggers presented the following scenario. They were assigned to dig Dorothy Mallison Carney's grave in the Mallison family plot. Her grave was to be between her husband's and her mother's (Katherine Mallison's). The grave diggers began at 11:30 a.m.; the grave had to be ready when the funeral arrived at about 2:00 p.m. They stopped when the grave was partially dug because they hit a rough box containing the coffin and remains of Katherine Mallison. The backhoe they were using had a thirty-six-inch wide shovel. They testified that when they stopped digging, they could see the top of the rough box protruding a foot into the grave. The grave was three feet wide and of this three feet, one foot was taken by the rough box. The grave they were digging was between two others; each grave is allotted a forty-inch width. The grave could not be moved a foot to the other side to avoid the rough box because it would have hit the adjoining grave.

The grave diggers called their supervisors, the foreman, Walker, and the superintendent, Robert Smith, at about 11:45 a.m., when they struck the rough box. It is uncontroverted that the rough box was undamaged at this point.

The grave diggers took a one-half hour lunch break from 12:00 p.m. to 12:30 p.m. When they returned to the grave site, Smith and Walker were still there pondering what to do. At about 1:00 p.m., they told the grave diggers to finish the grave. Smith is reported to have said: "It [the rough box] shouldn't be there, * * * go ahead and have the men dig it out."

In the scenario outlined by grave diggers, it was inevitable that the remains of Katherine Mallison would be disturbed by using the backhoe to dig the remainder of Dorothy Carney's grave.

The grave diggers testified that Walker stood by the grave and watched the wooden fragments of the rough box being scooped out of the grave and loaded into a dump truck. When the grave was dug, he told the truck operator to dump the dirt from the grave in the far back.

Smith left after ordering the grave to be completed; however, he did not leave the area. The grave diggers testified that he drove his truck onto a nearby road and parked. He watched the digging of the grave from this vantage point.

If the jury believed the grave diggers, they may have concluded that Smith and Walker decided to complete the grave the workers were digging, prior to the arrival of Dorothy Carney's funeral, even if it meant disinterring her mother. They then permitted her remains to be dumped with other refuse from the grave in a remote area of the graveyard, where the remains would have remained if an informant had not alerted the media.

The jury's failure to sanction this behavior was within its discretion. Its award cannot be said to be the result of passion and prejudice.

¹¹ The law regarding negligent as opposed to intentional infliction of emotional distress is at issue in this case. The plaintiffs pled and argued their injuries were due to the defendants' negligence.