Brown v. Matthews Mortuary, Inc.

Decision Date15 November 1990
Docket NumberNo. 18116,18116
PartiesMichael BROWN and Ella Belle Brown, Plaintiffs-Appellants, v. MATTHEWS MORTUARY, INC., an Idaho corporation; Aultorest Memorial Corporation, a Utah corporation, a/d/b/a Aultorest Memorial Crematorium, and unknown defendants, Defendants-Respondents.
CourtIdaho Supreme Court

Cox, Ohman & Brandstetter, Idaho Falls, for defendant-respondent Matthews. John Ohman, argued.

Racine, Olson, Nye, Cooper & Budge, Pocatello, for defendant-respondent Aultorest. Cary B. Colaianni, argued.

BOYLE, Justice.

In this appeal from a summary judgment we are called upon to determine whether the trial court correctly ruled that there were no genuine issues of material fact to support plaintiffs' claims for breach of contract, negligent mishandling of a dead body, and the tort of outrage.

Charles Blaine Brown died in a Logan, Utah hospital on June 2, 1984. The day after his death the plaintiffs-appellants Ella Belle Brown, the decedent's wife, and Michael Brown, Ella's and the decedent's son, returned to their home in Montpelier, Idaho where they contacted defendant Matthews Mortuary for the purpose of arranging cremation and a memorial service. Matthews Mortuary informed Ella Brown that it was not licensed to provide cremation services and that the cremation would have to be performed at a crematory. Matthews selected Aultorest Crematorium of Ogden, Utah, a firm with which it had not previously dealt. A memorial service was held without the presence of the cremated remains. Approximately three weeks later Matthews Mortuary delivered to Ella and Michael Brown a plastic box in a brown wrapper containing what was assumed to contain Charles' cremated remains. The box remained unopened for approximately one year, until such time that Michael Brown took the remains to scatter in the Elk Valley area near Montpelier, Idaho. When Michael removed the brown wrapper, the burial transfer certificate located inside bore the name of one Michael Calvin Jackson and it was presumed that the remains in the container were not those of Charles Brown. Subsequent to this discovery, Ella and Michael Brown requested the return of Charles' cremated remains, however they have not yet received them and all parties conclude that his remains have been lost.

Ella and Michael Brown filed a complaint for damages against Matthews Mortuary and Aultorest Memorial Crematorium seeking general contract damages as well as damages for emotional distress based on breach of contract. They also seek damages for the negligent infliction of emotional distress and damages for emotional distress caused by the alleged outrageous conduct of the defendants in the mishandling of Charles' cremated remains.

The defendants-respondents, Matthews Mortuary and Aultorest Memorial Crematorium, (hereinafter "respondents"), filed motions for summary judgment. Portions of the deposition of Ella Brown were appendixed or referred to in the briefs in support of summary judgment submitted by both defendants. No portion of Michael Brown's deposition was before the trial court at the time of the summary judgment proceeding. Ella and Michael Brown filed no opposing affidavits in response to the motion for summary judgment. On the day of the hearing the Brown's counsel filed a "legal memorandum" opposing summary judgment. The respondents moved to strike the Browns' brief as being untimely filed. The district court granted the motion to strike and, after considering the arguments by each party in support of their positions, ruled that there were no genuine issues of material fact and that Matthews Mortuary and Aultorest Memorial Crematorium were entitled to judgment as a matter of law. The district court also held that the claim was pursued frivolously and awarded costs and attorney fees to both respondents.

I. Summary Judgment: Standard of Review

"A motion for summary judgment shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c); Rawson v. United Steelworkers of Am., 111 Idaho 630, 726 P.2d 742 (1986); Schaefer v. Elswood Trailer Sales, 95 Idaho 654, 516 P.2d 1168 (1973). Standards applicable to summary judgment require the district court and Supreme Court upon review, to liberally construe facts in the existing record in favor of the party opposing the motion, and to draw all reasonable inferences from the record in favor of the nonmoving party. Tusch Enters. v. Coffin, 113 Idaho 37, 740 P.2d 1022 (1987); Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986); Anderson v. Ethington, 103 Idaho 658, 651 P.2d 923 (1982); Kline v. Clinton, 103 Idaho 116, 645 P.2d 350 (1982); Palmer v. Idaho Bank & Trust of Kooskia, 100 Idaho 642, 603 P.2d 597 (1979). If the record contains conflicting inferences or reasonable minds might reach different conclusions, a summary judgment must be denied. Kline v. Clinton, 103 Idaho 116, 645 P.2d 350 (1982); Farmers Ins. Co. of Idaho v. Brown, 97 Idaho 380, 544 P.2d 1150 (1976); Stewart v. Hood Corp., 95 Idaho 198, 506 P.2d 95 (1973); Lundy v. Hazen, 90 Idaho 323, 411 P.2d 768 (1966).

Idaho Rules of Civil Procedure 56(b) allows defending parties to present their motion for summary judgment with or without supporting affidavits. In this case Matthews Mortuary, Inc. presented the affidavit of Leonard Matthews in support of their motion for summary judgment. Defendant Aultorest submitted portions of the deposition of Ella Brown as an exhibit. We note that although the deposition of Ella Brown and Michael Brown had previously been taken, I.R.C.P. 30(f)(4), as amended in 1988 requires the parties relying on specific portions of the depositions in support of their position to present or direct the court's attention those portions. With the new amendment to Rule 30(f)(4) depositions are no longer physically filed with the clerk and the trial court is not required to review the entire deposition on a motion for summary judgment. Only those portions of the deposition that are applicable to the existence or non-existance of a genuine issue of material fact need be submitted to the court. In this instant case, the record before the trial court on the defendants' motions for summary judgment consisted only of the pleadings, affidavit of Leonard Matthews and selected portions from the deposition of Ella Brown.

Rule 56(e) requires a party to respond to a motion for summary judgment with something more than relying on the mere allegations or denials in the pleadings. Affidavits or other proof must be presented to the court to set forth the specific facts showing that there is a genuine issue existing for trial. Although the deposition of Michael Brown and Ella Brown were part of the record before us on appeal by way of augmentation of the record after appeal, we review only that portion of the record which was before the trial court at the time the summary judgment motion was presented. Neither the deposition of Michael Brown nor any portions thereof were part of the trial court record and were not relied upon by the district judge in granting respondent's motions for summary judgment. It is with this factual background and these legal principles and standards in mind that we review this appeal.

II. Theories of Tort of Outrage and Intentional Infliction of Emotional Distress

The appellants seek to recover damages for emotional distress caused by respondents' alleged "outrageous, wanton, and malicious conduct." Appellants argue that the facts in this case clearly fall within the parameters of the tort of outrage and cite Prosser and Keeton, Law of Torts in support of their position. In the section entitled "Infliction of Mental Distress" Prosser and Keeton discuss the evolution of a cause of action based on extreme and outrageous conduct, sometimes referred to as the "tort of outrage." Historically, the basis of liability often rested upon technical assault, battery, false imprisonment, trespass to land, nuisance, or invasion of the right to privacy. Prosser and Keeton, Law of Torts § 12, pp. 60-61 (5th ed., 1984). However, in the early part of this century some courts began to recognize that the intentional infliction of mental disturbance by extreme and outrageous conduct constituted a cause of action in itself. Id. at 60. Generally speaking, liability is based on conduct "exceeding all bounds usually tolerated by decent society, and of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." Id. at 60. Prosser notes that the cause of action may take a variety of forms, 1 including those that involve the mishandling of dead bodies. 2 In the early cases dealing with the mishandling of dead bodies, most courts based the cause of action on interference with a "property right" to the body, usually in the next of kin. Id. at 63. However, as time went on courts began to disregard the property right basis for recovery and began to recognize that the tort is in reality the infliction of mental distress. Id. at 63.

We have not specifically recognized a cause of action or theory of recovery known as the tort of outrage, and decline to do so on the facts and circumstances presented here. However, the tort of intentional infliction of emotional distress is well established in Idaho. Gill v. Brown, 107 Idaho 1137, 695 P.2d 1276 (Ct.App.1985); Rasmuson v. Walker Bank & Trust Co., 102 Idaho 95, 625 P.2d 1098 (1981); Hatfield v. Max Rouse & Sons Northwest, 100 Idaho 840, 606 P.2d 944 (1980). In order to recover for the intentional infliction of emotional distress the plaintiff must prove that the defendant's conduct was extreme and outrageous which either intentionally or recklessly causes severe emotional distress. Gill v. Brown, 107 Idaho 1137, 695 P.2d 1276 (Ct.Ap...

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