Burgess v. Perdue, 58822

• Decision Date: 13 June 1986
• Docket Number: No. 58822,58822
• Citation: 721 P.2d 239,239 Kan. 473
• Parties: Mary A. BURGESS, Individually and as Heir-at-Law of Stephen D. Bloomer, deceased, Appellant, v. W. Lang PERDUE, II, M.D., and State of Kansas, Appellees.
• Court: Kansas Supreme Court

Page 239

721 P.2d 239

239 Kan. 473

Mary A. BURGESS, Individually and as Heir-at-Law of Stephen D. Bloomer, deceased, Appellant, v. W. Lang PERDUE, II, M.D., and State of Kansas, Appellees.

No. 58822.

Supreme Court of Kansas.

June 13, 1986.

Syllabus by the Court

1. In an action for damages for alleged torts of outrage and negligent infliction of emotional distress, it is held that the district court properly granted summary judgment when: (1) Plaintiff did not state a cause of action of outrage, and (2) the cause of action of negligent infliction of emotional distress for interference with a dead body is not recognized in this jurisdiction.

2. The tort of outrage is discussed.

3. For an individual to be liable for emotional distress for interfering with a dead body, the act must be intentional or malicious, as opposed to negligent, interference with the plaintiff's right to the body and the interference must be the proximate cause of the mental anguish and/or physical illness of the plaintiff.

4. One who undertakes, gratuitously or for consideration, to render services to another is subject to liability if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.

Rene M. Netherton, of Law Offices of Jerry K. Levy, P.A., Topeka, argued, and was on brief, for appellant.

Marla J. Luckert, of Goodell, Stratton, Edmonds & Palmer, Topeka, argued, and Wayne T. Stratton, was with her on brief, for appellee Perdue.

Michael George, State Dept. of Social and Rehabilitation Services, argued, and Hal E. DesJardins, Topeka, and David D. Plinsky, Asst. Atty. Gen., were with him on brief, for appellee State of Kan.

LOCKETT, Justice:

The plaintiff appeals the decision of the Shawnee County District Court granting summary judgment to all remaining defendants prior to trial on the basis that (1) she did not state a cause of action of outrage against the State and (2) the cause of action of negligent infliction of emotional distress for interference with a dead body, which she alleged against the defendant, W. Lang Perdue, II, is not recognized in this state.

Mary A. Burgess, the plaintiff, is the mother of Stephen D. Bloomer, deceased. Stephen was a resident of Kansas Neurological Institute (KNI) from June 1970, until his death on July 17, 1983. Dr. Camille Heeb was the treating physician for Stephen while he was a resident of KNI.

On July 17, 1983, Stephen was suffering from bilateral pneumonia. Dr. Heeb was out of town at a meeting, so Dr. W. Lang Perdue, II, was called to KNI to treat Stephen. Dr. Perdue attempted to place a subclavian catheter into Stephen's vein. Because the procedure was only partially successful, Stephen was taken to Stormont-Vail Regional Medical Center for emergency treatment. Stephen died of cardiac arrest while in transit to the hospital.

After Mrs. Burgess arrived at the hospital, Dr. Perdue advised her of Stephen's death. Mrs. Burgess informed the doctor that she did not want an autopsy performed on Stephen. Dr. Perdue then called the county coroner, Dr. Kiernan O'Callaghan, and described the circumstances of the death. Dr. O'Callaghan certified the death as a coroner's case pursuant to K.S.A. 19-1031 et seq. He stated that an autopsy would be required. Dr. Perdue then called Mrs. Burgess at her home. He informed her that an autopsy would be performed regardless of her granting permission. Though it was not necessary, Dr. Perdue asked for the mother's permission to perform the autopsy, mentioning that KNI would want to examine the brain. Mrs. Burgess agreed to a partial autopsy, but told Dr. Perdue that she neither wanted an autopsy done on her son's brain, nor would allow KNI to examine his brain.

Dr. Perdue failed to inform the county coroner that Mrs. Burgess had consented only to a limited autopsy. Instead, Dr. Perdue furnished to the county coroner a written authorization, as if approved by the mother, allowing a complete autopsy. The assistant county coroner performed a full autopsy on the body. Stephen's brain was removed and sent to KNI by the coroner.

Three weeks after Stephen's funeral, Dr. Heeb discovered the decedent's brain among the specimens received by KNI from the county coroner's office. Dr. Heeb then called Mrs. Burgess, informed her that KNI had her son's brain, and asked her what she would like to have done with it.

Later Stephen's body was exhumed and his brain buried with his body. The cost of having his body exhumed and reburied was $1,199.52.

On November 17, 1983, Mrs. Burgess filed a petition against Dr. Perdue and the State of Kansas. Plaintiff's petition sought damages (1) from the State of Kansas for the outrageous and negligent act of its employee, Dr. Heeb, in calling Mrs. Burgess, and (2) from Dr. Perdue for negligent infliction of emotional distress.

Both defendants filed motions for summary judgment. On September 20, 1985, the district court granted the State's motion, finding that Dr. Heeb's act of calling the plaintiff and informing her that KNI had her son's brain was not outrageous.

Later, the court granted defendant Perdue's motion, holding that a claim for negligent infliction of emotional distress for interference with a dead body will not lie against one who does not directly mishandle a decedent's remains.

Plaintiff appeals from both of the court's orders.

The plaintiff first contends that Dr. Heeb's act of telephoning her to tell her that KNI "had her son's brain in a jar" was outrageous conduct.

In Dawson v. Associates Financial Services Co., 215 Kan. 814, 820, 529 P.2d 104 (1974), this court recognized the tort of outrage as stated in the Restatement (Second) of Torts § 46(1) (1963):

"One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm."

The tort of outrage was discussed at length in Roberts v. Saylor, 230 Kan. 289, 292-294, 637 P.2d 1175 (1981).

For intentional infliction of mental distress (outrage), proof of four elements is required to establish the cause of action: (1) the conduct of defendant must be intentional or in reckless disregard of plaintiff; (2) the conduct must be extreme and outrageous; (3) there must be a causal connection between the defendant's conduct and plaintiff's mental distress; and (4) plaintiff's mental distress must be extreme and severe.

Liability for extreme emotional distress has two threshold requirements which the court must first determine exist. The requirements are: (1) Whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by plaintiff was of such an extreme degree that the law must intervene because the distress inflicted was so severe that no reasonable person should be expected to endure it. If the court determines from the pleadings, stipulations, admissions, and depositions of the parties that reasonable factfinders might differ as to whether defendant's conduct was sufficiently extreme and outrageous and the plaintiff's emotional distress was genuine and so severe and extreme that it caused injury, then it must be left to the jury to determine liability.

This court has failed to find outrageous conduct since the cause of action was recognized in Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104. Other Kansas cases discussing outrageous conduct include: Hanrahan v. Horn, 232 Kan. 531, 657 P.2d 561 (1983) (defendant told class that plaintiff was suspect in murder of plaintiff's son); Hoard v. Shawnee Mission Medical Center, 233 Kan. 267, 662 P.2d 1214 (1983) (plaintiffs were informed that their daughter was dead when she was actually at a different hospital); Neufeldt v. L.R. Foy Constr. Co., 236 Kan. 664, 693 P.2d 1194 (1985) (woman who was recovering from miscarriage was falsely informed that an arrest warrant had been issued for her husband); Chism v. University of Kansas Coll. of Health Sciences, 237 Kan. 330, 699 P.2d 43 (1985) (a student was dismissed from medical school after repeated failure of courses).

Other courts have found that there is liability when an action exceeds all the bounds usually tolerated by a decent society, and it is of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. Cases from other jurisdictions in which extreme outrage has been found include: Savage v. Boies, 77 Ariz. 355, 272 P.2d 349 (1954) (a woman suspected of insanity was decoyed to a hospital by a concocted tale of an injured husband and child); Wilson v. Wilkins, 181 Ark. 137, 25 S.W.2d 428 (1930) (a mob was brought to the plaintiff's door at night threatening to lynch him unless he left town); Tea Company v. Roch, 160 Md. 189, 153 A. 22 (1930) (the defendant wrapped a very gory dead rat inside of a loaf of bread and gave it to a person sensitive to such); Wilkinson v. Downton, 2 Q.B. 57 (1897) (a practical joker amused himself by telling a woman that her husband had been smashed up in an accident and was lying with both legs broken, and that she was to go at once to "fetch" him home).

Here, however, the plaintiff is not suing the State for what happened to the body, but for the doctor's action in calling her to notify her that her son's brain was at KNI. While the statements made to the mother were probably shocking, they were not outrageous--"so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." The doctor called the mother because she knew the mother had not wanted the brain autopsied. The doctor was concerned that any impropriety be resolved. She did not intend to harass or intimidate or otherwise abuse the mother. No malice was...