Fox v. City of Bellingham

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE MARCH 18, 2021
SUPREME COURT, STATE OF WASHINGTON
MARCH 18, 2021
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CERTIFICATION FROM THE UNITED )
STATES DISTRICT COURT FOR THE )
WESTERN DISTRICT OF WASHINGTON )
IN )
ROBERT FOX, )
)
Plaintiff, ) No. 98514-6
) (certified C19-0955RSL)
v. )
) En Banc
CITY OF BELLINGHAM, )
) Filed : March 18, 2021
Defendant. )
)
OWENS, J. ― The United States District Court for the Western District of
Washington asks us via certified question 1 to answer who has standing to bring an
action for tortious interference with a deceased body—a tort action that we have
addressed on only a few occasions in the last century. In this case, Mr. Robert Fox
alleges that he experienced severe emotional distress when he learned that the city of
1
Order Certifying Questions to Wash. Supreme Ct., Fox v. City of Bellingham, No. C19-
0955RSL, at 4-5 (W.D. Wash. Apr. 28, 2020).
Fox v. City of Bellingham
No. 98514-6
Bellingham Fire Department placed medical tubes inside his deceased brother as part
of a training exercise without receiving consent from the family.
The city of Bellingham (City) asks the court to dismiss Mr. Fox’s claim,
asserting that Mr. Fox, as the brother of the deceased, who is not the custodian of his
brother’s remains under RCW 68.50.160, is an improper party to bring this suit.
Whether someone such as Mr. Fox has standing to bring such a suit is an issue of first
impression for this court. The City asserts that standing to bring such a suit is limited
to those charged with the care of their relatives’ remains under RCW 68.50.160, while
Mr. Fox asks the court to permit close relatives to bring suit as foreseeable plaintiffs.
Over 100 years ago, this court recognized the purpose behind this action was to
compensate those who suffer from the emotional distress arising from the
mistreatment of their loved ones’ remains. We follow in their reasoning today and
hold that standing for this action is meant to address that harm. Accordingly, we hold
that Mr. Fox has standing to bring an action for interference with his brother’s body.
I. STATEMENT OF FACTS
This case reaches us via questions certified by the United States District Court
for the Western District of Washington at Seattle. Order Certifying Questions to
Wash. Supreme Ct., Fox v. City of Bellingham, No. C19-0955RSL, at 4-5 (W.D.
Wash. Apr. 28, 2020). The question regarding standing was raised by the City. Id. at
1. We construe the alleged facts and inferences in the light most favorable to the
2
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nonmoving party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015) (citing
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998)).
Mr. Fox is the brother of the decedent, Mr. Bradley Ginn Sr. Mr. Fox and his
brother previously lived together and spoke to each other weekly. Mr. Ginn passed
away in 2018. When the hospital in Bellingham did not have space to store his body,
the fire department brought Mr. Ginn’s body to the station.
After relocating Mr. Ginn, the fire department, without obtaining permission
from Mr. Ginn’s family, used Mr. Ginn’s body for a training exercise. Fire
department employees took turns intubating Mr. Ginn’s deceased body—
approximately 15 times. Mr. Fox claims that he experienced severe emotional distress
upon learning of these events. Thereafter, Mr. Fox participated in planning his
brother’s end of life celebration.
As a result of these events, Mr. Fox brings a claim of tortious interference with
a corpse against the City in federal court. The City moved for summary judgment,
asserting that Mr. Fox lacks standing because he is not the designated custodian of his
brother’s remains under RCW 68.50.160. Under this statute, Mr. Ginn’s wife 2 is
charged with the care of Mr. Ginn’s remains.
2
Mr. Ginn’s wife brought a separate action in federal court.
3
Fox v. City of Bellingham
No. 98514-6
II. CERTIFIED QUESTIONS PRESENTED
1. Whether only those individuals identified as “next of kin” as defined by
RCW 68.50.160 at the time of a decedent’s death have standing to bring a
claim for tortious interference with a corpse?
2. Whether Mr. Fox, the decedent’s brother, is within the class of plaintiffs
that may bring a claim for tortious interference with a corpse?
III. ANALYSIS
A. This Court Has Not Addressed Standing for Relatives Like Mr. Fox in an Action
for Tortious Interference with a Corpse
We review certified questions from the federal courts de novo. Brady v. Autozone
Stores, Inc., 188 Wn.2d 576, 580, 397 P.3d 120 (2017).
The City asks the district court to dismiss the action, asserting that Mr. Fox does
not have standing to bring an action for tortious interference with a corpse. The City
argues that Mr. Fox lacks standing because he is not the lawful custodian of his brother’s
remains under RCW 68.50.160.
From the outset, it appears that standing for such relatives is an issue of first
impression for this court. Amaker v. King County, 540 F.3d 1012, 1016, 1018 (9th Cir.
2008). The City argues to the contrary that the first case recognizing this tort, Wright,
limited standing to those “persons who are the lawful custodians of a deceased body.”
Wright v. Beardsley, 46 Wash. 16, 18, 89 P. 172 (1907). The City frames this quote as
meaning that only those with the responsibility of burial have standing.
We disagree. In Wright, this court allowed two parents to sue for an improper
burial of their child. Id. at 17. Thus, while Wright held that lawful custodians of a
4
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No. 98514-6
deceased body could bring a claim, it never restricted others from doing so. Additionally,
none of the cases following Wright limited standing.
Since Wright, we have had few opportunities to address this cause of action. In
the rare occasions 3 that we have, none of the cases involved a family member other than a
parent. Gadbury v. Bleitz, 133 Wash. 134, 136, 233 P. 299 (1925) (expanding tort
beyond wrongful burial for mother); Adams v. King County, 164 Wn.2d 640, 192 P.3d
891 (2008) (declining to adopt Restatement 4 version of tort for mother suing on behalf of
child).
Accordingly, we have not yet had the opportunity to address this issue in
our state and this issue is one of first impression. We turn to the relevant history
and policy to address this issue.
B. Tortious Interference with a Corpse Was Historically Rooted in Property Law
Because Suits for Emotional Damages Alone Were Traditionally Barred
We first look to the origins and historical development of this species of tort for
guidance. At the time of Wright, this court did not permit suit for emotional damages in
tort actions. See Wright, 46 Wash. at 17-20; Corcoran v. Postal Telegraph-Cable Co., 80
Wash. 570, 575, 142 P. 29 (1914) (mental suffering actions were limited to negligence
cases with physical injury, breach of marriage contracts, and willful wrongs typically
3
While the City additionally relies on Herzl Congregation v. Robinson, 142 Wash. 469, 253 P.
654 (1927), Herzl did not involve a claim of tortious interference with a corpse.
4
The Restatement allows recovery for negligent interference with a corpse and limits standing to
the “next of kin,” although it takes no position regarding standing for other family members.
RESTATEMENT (SECOND) OF TORTS § 868 caveat cmts. a, b (AM. LAW INST. 1979).
5
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affecting liberty, character, reputation, personal security, or domestic relations);
RESTATEMENT OF TORTS § 46 (AM. LAW INST. 1934) (suits for conduct intended to
cause emotional distress generally not allowed).
Faced with these limitations, early courts would permit suit; albeit, traditional tort
doctrine was circumvented by classifying these actions under other areas of law. See
Wright, 46 Wash. at 19 (plaintiffs bringing contract suit to recover for mental anguish);
Larson v. Chase, 50 N.W. 238 (Minn. 1891) (mutilation of a corpse is not a trespass
against property but an action for injured feelings). The Restatement’s reporters
recognized this “quasi-property” doctrine as a legal fiction, noting that a corpse does not
easily fit into the “category of property, since the body ordinarily cannot be sold or
transferred, has no utility and can be used only for the one purpose of interment or
cremation. In practice the technical right has served as a mere peg upon which to hang
damages.” RESTATEMENT (SECOND) OF TORTS § 868 cmt. a. (emphasis added); Carney
v. Knollwood Cemetery Ass’n, 33 Ohio Ct. App. 3d 31, 36, 514 N.E.2d 430 (1986) (the
“quasi-property” theory was used to “conceal[] the real basis for damages, which is
mental anguish”).
While the Restatement drew from the great corpus of early 20th century
American law in classifying the claim as a quasi-property action, some early
courts, such as our own, did not shy away from recognizing the true basis of the
claim. As Wright clearly articulated, such actions are aimed at compensating for
“a wrong against the feelings of the plaintiffs inflicted by a wrongful and improper
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No. 98514-6
burial of their dead. . . a tort or injury against the person.” Wright, 46 Wash. at 19;
see also Larson, 50 N.W. at 239-40.
Although Wright recognized the true nature of the tort, we have not yet
defined the scope of standing for this claim and whether it should be limited by the
quasi-property doctrine that many other jurisdictions have followed. To make this
determination, we analyze the underlying policy and practical effects of the quasi-
property approach.
C. The Basis for Treating the Corpse as Property Has Eroded—Washington Law
Now Recognizes Recovery for Emotional Injuries without Physical Harm
As this court has carefully crafted the common law of torts, this continual
evolution has required us to cautiously balance the needs of the aggrieved with the rights
of defendants. We must both recognize and address the evolving needs of society while
simultaneously setting reasonable limitations so as to not open the proverbial floodgates
of litigation. The City asserts here that permitting any class greater than the custodian of
remains to bring suit will expose defendants to virtually endless liability. We disagree.
While we seldom have had the occasion to address the intricacies of this tort, the
heart of the City’s standing argument is one that we have previously addressed. For
example, in Grimsby v. Samson, we permitted family members to bring suit under the tort
of outrage when they were present at the scene of an intentional and outrageous act. 85
Wn.2d 52, 60, 530 P.2d 291 (1975). The defendants in Grimsby presented two
arguments against expanding standing that mirror the City’s arguments today: first, that
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No. 98514-6
“courts will be flooded by fraudulent claims” and second, that defendants will have
“unlimited liability for every type of mental disturbance.” Id. at 58.
In Grimsby, we noted that our courts and juries act as sufficient barriers to protect
defendants against fraudulent claims. Id. at 58-59. Furthermore, we reasoned that
defendants would not be subject to “unlimited liability” for every “mental disturbance”
because standing was sufficiently limited by the intentional nature of the act. Id. at 59.
We have not turned away from the principles we announced in Grimsby. Rather, our
courts and juries continue to serve as barriers against fraudulent litigation. And this tort,
similar to outrage, requires demonstration of intent and sufficiently limits the type and
amount of claims that can be brought. Wright, 46 Wash. at 19.
In addition to these considerations, implementing RCW 68.50.160 as the test for
standing would have arbitrary and harmful effects. If we applied this statute to determine
standing, the determination of who could bring suit would be based on the randomness of
familial survivorship. Thus, the right to sue could vest in some cases in a singular oldest
child or sibling, when there could be many other children and siblings who suffer the
same harm. In other scenarios, a friend, stranger, or even a funeral home charged with
the responsibility could preclude other family members from bringing suit. See RCW
68.50.160(2), (3). This limitation makes little practical sense: “if the plaintiff wins
simply because he has suffered mentally[,] there seems to be no basis for a rule that
allows one individual a right of action and denies it to another who has essentially
identical interests and has suffered equally from the wrong.” Carney, 33 Ohio Ct. App.
8
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No. 98514-6
3d at 35 n.5 (quoting Harry R. Bigelow, Jr., Note, Damages: Pleading: Property: Who
May Recover for Wrongful Disturbance of a Dead Body, 19 CORNELL L.Q. 108, 110-11
(1933)).
As Wright noted over 100 years ago, this action is meant to compensate for “a
wrong against the feelings of the plaintiffs inflicted by a wrongful and improper burial of
their dead. . . a tort or injury against the person.” 46 Wash. at 19. As the foundations of
the “quasi-property” doctrine have eroded through time, its application today would serve
only as an unreasonable limitation to access to justice. Accordingly, we reject the narrow
“quasi-property” approach to standing. Instead, we ask whether Mr. Fox falls within the
class of foreseeable plaintiffs for this action.
D. The Foreseeable Class of Plaintiffs Includes Close Relatives
Tortious interference with a corpse, as recognized in our state, is an intentional
tort. 5 Id. Intentional tort claims involve enhanced psychological culpability and
diminished social utility compared to merely negligent acts. Christensen v. Superior
Court, 54 Cal. 3d 868, 883, 820 P.2d 181, 2 Cal. Rptr. 2d 79 (1991) (quoting Thing v. La
Chusa, 48 Cal. 3d 644, 652-53, 771 P.2d 814, 257 Cal. Rptr. 865 (1989)). Thus, the
5
The City asserts that like outrage, Washington does not allow “bystander liability” and that
Mr. Fox was not present when his brother was intubated. Def. City’s Reply Br. at 10 (citing
Colbert v. Moomba Sports, Inc., 163 Wn.2d 43, 176 P.3d 497 (2008)). But to adopt such a
limitation here would deny plaintiffs relief in all but the rarest of cases—and such situations are
already likely covered by the tort of outrage. Wright, 46 Wash. at 16; Gadbury, 133 Wash. at
135-36; see also Christensen v. Superior Court, 54 Cal. 3d 868, 899, 820 P.2d 181, 2 Cal. Rptr.
2d 79 (1991). We impose no such limitation today.
9
Fox v. City of Bellingham
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justification to limit standing for intentional torts is significantly weaker than with less
culpable negligent conduct.
With this in mind, courts in neighboring jurisdictions have taken an expansive
approach for this fairly rare species of torts, allowing claims from “close relatives,” and
in some cases, “close friends” to bring suit. See, e.g., Christensen, 54 Cal. 3d at 883;
Carney, 33 Ohio Ct. App. 3d at 37.
The City argues that we should not adopt the “close relatives” approach as this
group is overly indefinite. Admittedly, “close relatives” is imprecise. But while we
could announce a specific enumerated list of “close relatives” with standing, doing so
could result in many of the same arbitrary limitations we seek to avoid by rejecting RCW
68.50.160.
We instead note that the range of “close relatives” with standing should not be
circumscribed based solely on a set of definite familial relationships. Rather, several key
factors are helpful in determining whether someone is a close relative. For instance,
those family members who have shared significant and substantial contacts with the
deceased during their lifetime are those who may foreseeably suffer significant mental
anguish. We contemplate that a variety of familial relationships may indeed be closer
than those shared within the nuclear family depending on the circumstances.
For example, a grandchild who lived with a grandparent or an aunt caring for a
nephew for several years may be sufficiently close. An additional consideration,
although not dispositive, is regularity in contact in the years preceding death. While we
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do not define with exactitude the entire spectrum of those who may bring such claims,
these factors are highly relevant in this determination, although other details may also be
important. Thus, this group of “close relatives” is included within the group of
foreseeable plaintiffs, alongside those charged with the duty of burial as noted in Wright.
Applying these factors to the case at hand, Mr. Fox is Mr. Ginn’s biological
brother. Mr. Fox lived with his brother during his adult life, and the two spoke to each
other weekly. Mr. Fox took part in preparing his brother’s end of life celebration. Based
on these facts, Mr. Fox has put forth sufficient evidence that he is a “close relative” of his
brother and, therefore, has standing to bring suit.
IV. CONCLUSION
Historically, the tort of “interference with a corpse” was based on a “quasi-
property” interest and limited standing to the next of kin. Washington has never placed
such a strict limitation on standing. Since the early days of Wright, the rationale for the
limitations associated with the quasi-property doctrine has eroded as tort law has
evolved. As an intentional tort, standing is governed by the foreseeability of emotional
harm and is not based solely on who has the statutory right of burial. Among the
foreseeable class of plaintiffs for intentional interference are those “close relatives” with
significant and substantial contacts with the deceased during their lives. Accordingly,
we answer the federal court’s certified questions as follows: (1) RCW 68.50.160 does
not govern standing for tortious interference with a corpse and (2) Mr. Fox is in the class
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of foreseeable plaintiffs with standing to bring suit for tortious interference with a
corpse.
WE CONCUR:
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Fox v. City of Bellingham
No. 98514-6
MADSEN, J. (dissenting)—The present case asks us to determine who has
standing to sue for tortious interference with a dead body. The majority is correct that
this is a question of first impression, and, in my view, the answer is simple. “[P]ersons
who are the lawful custodians of a deceased body may maintain an action for its
desecration.” Wright v. Beardsley, 46 Wash. 16, 18, 89 P. 172 (1907). RCW 68.50.160
codified common law custodians: control of bodily remains rests with the decedent and,
absent a decedent’s prearrangements, devolves along the lines of descent from surviving
spouse or domestic partner to surviving children, surviving parents, and surviving
siblings of the decedent. RCW 68.50.160(1), (3)(a)-(f); 16 DAVID K. DEWOLF &
KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LAW AND PRACTICE § 14:18, at 697
(5th ed. 2020) (noting that Washington has codified the common law right to control
bodily remains).
Our case law recognizes specific individuals, formally set out in RCW 68.50.160,
may maintain actions for interfering with a deceased body. See Wright, 46 Wash. at 18;
see also Gadbury v. Bleitz, 133 Wash. 134, 139, 233 P. 299 (1925) (“it has been held in
many cases that those persons who by relationship have a peculiar interest in seeing that
the last sad rites are properly given the deceased may maintain the action”); Herzl
No. 98514-6
Madsen, J., dissenting
Congregation v. Robinson, 142 Wash. 469, 473, 253 P. 654 (1927) (holding that the right
to bury and preserve bodily remains “‘belong[] exclusively to the next of kin.’” (emphasis
added) (quoting 4 Bradford Rep. 503, 532 (N.Y. Surr. Ct. 1857))). I can find no
persuasive reason, nor has the majority provided one, for departing from this precedent,
even though this court has not yet decided the parameters of standing. See In re Rights to
Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970) (stating that
adherence to past decisions promotes clarity and stability in the law). Rather than
bringing clarity to this discrete and long-standing tort claim, the majority replaces settled
law with a case-by-case analysis and introduces uncertainty as to who has standing to
bring this claim. And, rather than aligning this tort with other emotional harm torts, the
majority inexplicably declines to set the same limitation that exists for other emotional
harm torts: the requirement of presence.
Our case law permits only lawful custodians of bodily remains as set out in RCW
68.50.160 to bring actions for tortious interference. I would therefore answer yes to the
first certified question and no to the second. The decedent in this case was survived by
his wife, therefore, Robert Fox—the decedent’s brother—lacks standing to sue the city of
Bellingham for tortious inference with bodily remains. For these reasons, I respectfully
dissent.
Discussion
It is indisputable that Robert Fox and his family suffered from the loss of Bradley
Ginn Sr., made all the more difficult by the circumstances surrounding the handling of
2
No. 98514-6
Madsen, J., dissenting
Ginn’s body. Indeed, it is likely that many other relatives and friends also feel pain and
outrage as a result of the actions discussed herein. I do not intend my discussion of the
procedural matter at hand to discount this pain. Nevertheless, the decision before this
court is whether Fox, as Ginn’s brother, had standing to sue for tortious interference. In
my view, he does not.
Washington common law has recognized tortious interference with a dead body
for over 100 years, allowing recovery for mental suffering that stems from the willful
misuse of a body. Adams v. King County, 164 Wn.2d 640, 658, 192 P.3d 891 (2008).
The tort consists of a quasi-property interest in a decedent’s body as well as an interest in
its proper treatment. Herzl, 142 Wash. at 472; Amaker v. King County, 540 F.3d 1012,
1016 (9th Cir. 2008).
Wright first articulated the tort of interference with a dead body. 46 Wash. at 20.
In that case, the court stated that “persons who are the lawful custodians of a deceased
body may maintain an action for its desecration.” Id. at 18 (citing J.E. Dunn & Co. v.
Smith, 74 S.W. 576 (Tex. Civ. App. 1903); Koerber v. Patek, 102 N.W. 40, 123 Wis. 453(1905)). The Wright court had little difficulty concluding that the plaintiffs, parents of
the deceased child, had standing to bring suit. Id. at 18-19.
In Gadbury, the court reviewed a suit for interference with a body. 133 Wash. at
134-35. There, a defendant disputed whether a mother was responsible for the disposal
of her son’s body and so could not sue for mental suffering caused by withholding it. Id.
at 138-39. This court disagreed, concluding that the decedent’s mother had “a peculiar
3
No. 98514-6
Madsen, J., dissenting
interest in seeing that the last sad rites [were] properly given the deceased” and, thus,
could maintain the action. Id. at 139.
The Herzl decision expressed the clearest articulation of who may bring tortious
interference claims. This court held that the right to bury a corpse and preserve its
remains is a “‘legal right, which the courts will recognize and protect . . . [and] [t]hat
such right, in the absence of testamentary disposition, belongs exclusively to the next of
kin.’” 142 Wash. at 473 (emphasis added) (quoting 4 Bradford Rep. at 532). Wright,
Gadbury, and Herzl premised the ability to bring tortious interference actions on the right
to control the disposition of a body.
RCW 68.50.160 codified this common law right. 16 DEWOLF & ALLEN, supra, at
589. The statute provides a list for whom the right to control bodily remains vests in the
absence of the decedent’s directions. RCW 68.50.160(3). According to the statute,
control passes from the decedent to a surviving spouse or domestic partner, surviving
adult children, surviving parents, and surviving siblings of the decedent. RCW
68.50.160(3)(c)-(f). Lawmakers did not add siblings to the list until 1993, over 50 years
since the provision was originally enacted. RCW 68.50.160; SUBSTITUTE H.B. 1195, 53d
Leg., Reg. Sess. (Wash. 1993).
Since first recognizing the tort for interfering with a dead body in 1907, this court
has, in practice, followed a theory of limited standing. E.g., Wright, 46 Wash. at 18;
Gadbury, 133 Wash. at 139; Herzl, 142 Wash. at 473. Such is the traditional approach
among jurisdictions that have opined on the matter and is associated with the Restatement
4
No. 98514-6
Madsen, J., dissenting
(Second) of Torts. See Amaker, 540 F.3d at 1015-16 (citing cases from Massachusetts,
Virginia, Michigan, and Georgia); 1 see also RESTATEMENT (SECOND) OF TORTS § 868
(AM. LAW INST. 1979).
Washington has not diverged from the traditional approach, though at least one
court has found our cases to suggest “contradictory standards.” See Amaker, 540 F.3d at
1017. For example, Wright noted that the improper handling of a dead body that causes
“relatives or persons charged with [a body’s] decent sepulture to naturally suffer mental
anguish” would shock the sensibilities. 46 Wash. at 20 (emphasis added). But this
statement describes the tort itself—identifying those who may suffer emotional distress,
not those who have standing to bring a suit based on such distress. Wright expressly
holds that “persons who are the lawful custodians of a deceased body may maintain an
action for its desecration.” 46 Wash. at 18-19. Gadbury reinforces this notion when it
1
Numerous jurisdictions have recognized limited standing for tortious interference actions:
Generally, the person who has the right to possess and bury the body is the
only proper party to sue and recover for the interference with that right. Steagall
v. Doctors Hospital, [Inc., 84 U.S. App. D.C. 214,] 171 F.2d 352, 353 (D.C. Cir.
1948); Burns v. Anchorage Funeral Chapel, 495 P.2d 70, 73 (Alaska 1972);
O’Dea v. Mitchell, 350 Mass. 163, 213 N.E.2d 870, 872 (Mass.1966);
Dumouchelle v. Duke University, 69 N.C.App. 471, 317 S.E.2d 100, 103
(N.C.Ct.App.1984); Whitehair v. Highland Memory Gardens, Inc., 174 W.Va.
458, 327 S.E.2d 438, 443 (W.Va.1985) . . . . This right typically belongs to the
surviving spouse and, if none, then passes to the next of kin in the order of
relation. Steagall, 171 F.2d at 353; Burns, 495 P.2d at 73; Whitehair, 327 S.E.2d
at 443.
Perry v. Saint Francis Hosp. & Med. Ctr., Inc., 865 F. Supp. 724, 726 (D. Kan. 1994).
Tennessee, Arizona, Florida, Maryland are in accord. See Crawford v. J. Avery Bryan Funeral
Home, Inc., 253 S.W.3d 149, 159-60 (2007) (citing Tomasits v. Cochise Memory Gardens, Inc.,
150 Ariz. 39, 721 P.2d 1166 (Ct. App. 1986); Andrews v. McGowan, 739 So.2d 132 (Fla. Ct.
App. 1999); Walser v. Resthaven Mem’l Gardens, Inc., 98 Md. App. 371, 390-91, 633 A.2d 466(1993)).
5
No. 98514-6
Madsen, J., dissenting
explained that “it has been held in many cases that those persons who by relationship
have a peculiar interest in seeing that the last sad rites are properly given the deceased
may maintain the action.” 133 Wash. at 139.
Additionally, in Adams, this court remarked that the interest in a body “extends to
relatives of the deceased and those who control the right to dispose of the body.” 164
Wn.2d at 658 (emphasis added) (citing Gadbury, 133 Wash. at 139; RCW 68.50.160(3)).
Similar to Wright, this statement does not expand standing to any relative who may suffer
emotional distress due to the mishandling of a dead body. Instead, it recognizes that the
interest in bodily remains includes those who control the right to dispose of a body,
which can include relatives. Moreover, the statement relies on authorities that align with
the traditional, limited standing approach. Gadbury identifies the common law interest in
controlling the disposal of a body, which RCW 68.50.160 vests along specific lines of
descent. Neither would permit a collateral relative’s action for tortious interference if a
closer relative—as enumerated under RCW 68.50.160(3)—survives the decedent and
controls disposition of the body. 2
2
Despite Amaker’s suggestion that Reid v. Pierce County, 136 Wn.2d 195, 205-08, 961 P.2d 333(1998), expanded standing to family members other than those with the right to dispose of a
decedent’s body, the case inapposite. 540 F.3d at 1017. Reid stated that the plaintiffs’ relatives,
which included the niece of one decedent, would have a claim for tortious interference with a
corpse. 136 Wn.2d at 198-99. Yet Reid also observed that the niece was assigned her claim by
her aunt, the decedent’s sister. Id. at 198 n.1. Moreover, Reid concerned a right to privacy
claim—not tortious interference—nor did it discuss standing and mentioned liability for
interference only tangentially. See Amaker v. King County, 479 F. Supp. 2d 1159, 1161 (W.D.
Wash. 2007).
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No. 98514-6
Madsen, J., dissenting
The majority, on the other hand, rejects a well-accepted body of case law,
spanning over 100 years, to adopt an expansive approach to standing that sets no
discernable limits. Relying heavily on the notion that Wright, Gadbury, and Herzl did
not directly concern standing, the majority easily disregards them. Majority at 4-5. This
is far from sufficient, considering we do not depart from precedent lightly. See State v.
Otton, 185 Wn.2d 673, 678, 374 P.3d 1108 (2016). Moreover, despite attempting to
show that Wright does not expressly limit standing, the majority offers few affirmative
reasons for why a new approach is needed. See generally majority at 4-7. Noting that
the original quasi-property interest in a body has eroded and that the true nature of
tortious interference claims is emotional damage speaks not at all to standing. See id. at
5-7. And bringing the tort of interference in line with other emotional-damages-based
torts is a laudable goal if legal housekeeping was our primary motivation. Cf. State v.
Vangerpen, 125 Wn.2d 782, 792, 888 P.2d 1177 (1995) (“[I]t is the province of this court
to decide the issues of law.”).
In its effort to “modernize” the court’s approach to this claim, the majority looks
to Grimsby v. Samson, 85 Wn.2d 52, 530 P.2d 291 (1975), to hold the tort of outrage is
analogous to tortious interference. Majority at 7-8. In Grimsby, the defendants presented
arguments that “mirror” the city of Bellingham’s arguments: that expanded standing risks
opening the floodgates to fraudulent claims and allowing unlimited liability for mental
disturbance. Id. The majority reasons that because we rejected these arguments in
Grimsby, we may similarly reject them here. Id. However similar the arguments may be,
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No. 98514-6
Madsen, J., dissenting
applying analogous rationale presumes the underlying law is analogous. That is simply
not the case.
The tort of outrage is distinct from tortious interference with bodily remains.
Outrage requires proof of intentional or reckless infliction of emotional distress, while
interference requires mental suffering derived from willful misuse of a body. Reid, 136
Wn.2d at 202; Adams, 164 Wn.2d at 658. And, outrage requires the plaintiff to be
present at the time of the defendant’s conduct. Grimsby, 85 Wn.2d at 60. Inexplicably,
the majority declines to adopt any such presence requirement for interference actions.
Majority at 9 n.5. This decision is inconsistent with the majority’s reasoning: adopting
Grimsby as a guide suggests that we should also adopt a presence requirement. 3
In any event, the Grimsby court rejected the potentially unlimited liability
argument based on the comments to the Restatement (Second) of Torts, which we have
not yet adopted for interference with bodily remains. 85 Wn.2d at 59-60; Adams, 164
Wn.2d at 656; RESTATEMENT (SECOND) OF TORTS § 46 (AM. LAW INST. 1965) (outrage);
RESTATEMENT (SECOND) OF TORTS § 868 (interference with a dead body). Grimsby does
not provide a useful analog for rejecting the city’s arguments, and even so, the majority’s
adoption is internally dissonant with the case itself.
3
The term “bystander” is used primarily in negligence-based emotional distress torts. Hegel v.
McMahon, 136 Wn.2d 122, 125-26, 960 P.2d 424 (1998) (bystander negligent infliction of
emotional distress plaintiffs are restricted to those who were present at the scene of an accident).
I therefore agree that the term is ill suited for application in the intentional tort of interference
with a dead body. Majority at 9 n.5; Adams, 164 Wn.2d at 658.
8
No. 98514-6
Madsen, J., dissenting
The majority adopts an expansive view of standing, but it cannot do so
consistently with past precedent or even internally with other emotional-damages-based
torts. Instead, we should adopt a resolution that accomplishes both. Considering this
court’s practical adherence to the traditional limited standing approach demonstrated by
Wright, Gadbury, and Herzl, I would conclude that a claim for tortious interference with
a dead body can be brought only by those with the right to control disposition of the
body. That is, the persons enumerated in RCW 68.50.160(3). Pursuant to this statute,
Ginn Sr.’s wife is the surviving spouse with the superior right to control disposition of his
body. Doc. 14, Ex. A at 24, 30-31 (Robert Fox’s deposition). Thus, Fox does not have
standing under RCW 68.50.160(3).
With these considerations in mind, I respectfully dissent.
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