Carney v. Knollwood Cemetery Ass'n

• Decision Date: 28 April 1986
• Docket Number: No. 49895,49895
• Citation: 33 Ohio App.3d 31,514 N.E.2d 430
• Parties: CARNEY et al., Appellees, v. KNOLLWOOD CEMETERY ASSN. et al., Appellants.
• Court: Ohio Court of Appeals

Page 31

33 Ohio App.3d 31

514 N.E.2d 430

CARNEY et al., Appellees, v. KNOLLWOOD CEMETERY ASSN. et al., Appellants.

No. 49895.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

April 28, 1986.

Syllabus by the Court

1. Mental anguish resulting from the mishandling of dead bodies has long been acknowledged.

2. A cause of action for the mishandling of a dead body is a sub-species of the tort of infliction of serious emotional distress.

3. The fact that an employer retains an employee, after knowledge of the latter's wilful and malicious conduct, tends to prove ratification of the employee's act sufficient to support a verdict against the employer for exemplary damages. (Saberton v. Greenwald [1946], 146 Ohio St. 414, 430, 32 O.O. 454, 460, 66 N.E.2d 224, 231, followed.)

Robert J. Fogarty and Patrick Carroll, Cleveland, for appellees.

Andrew Buckner, Cleveland, for appellants.

JACKSON, Presiding Judge.

Appellants Knollwood Cemetery Association and Robert Smith appeal from a judgment against them in the amount of $56,000. The judgment was rendered in favor of plaintiff-appellees Richard Carney, Katherine Howard, Peter Carney, and Mary Klein.

The factual background of this case is as follows: Dorothy Mallison Carney died in October 1982. Her burial was scheduled for October 25, 1982, in the Mallison family plot at Knollwood Cemetery. The cemetery foreman marked out the perimeter of Dorothy Carney's grave, and a cemetery workman began digging the grave with a backhoe. Unexpectedly, the backhoe bucket uncovered an old wooden vault, called a "rough box." Work was halted and the cemetery superintendent, Robert Smith, was summoned. Smith examined the site, and realized that further digging would destroy at least part of the rough box. Smith was aware that the rough box contained a coffin.

The time for the Carney burial was imminent. Smith instructed the workman to continue digging the grave, and then he left the gravesite. The workmen finished digging, and hauled dirt and debris to a site on the cemetery grounds, where they dumped it in a heap. The Carney burial was then carried out without further incident.

Unknown to the Carney mourners, the final resting place of Dorothy Carney's mother had been disturbed. The rough box encountered by the backhoe operator had contained the remains of Katherine G. Mallison, who was buried in 1929.

Approximately six months later, in March 1983, a Cleveland television station received a tip that skeletal remains had been dumped behind the cemetery. A film crew arrived at the cemetery, and was directed to the dumping ground by cemetery workers, who pointed out the decedent's bones. The police were notified, and a search of the pile uncovered brass handles and a name plate from the coffin of Katherine G. Mallison, along with the following remains, which the appellants admitted were those of Katherine G. Mallison:

4 sections of skull

2 tibia bones

1 fibula bone

1 piece of pelvic bone

1 piece of clavicle bone

1 piece of femur bone

human hair

A report of this incident was broadcast by the television station, whereupon the appellees discovered that the grave of their ancestor had been disturbed. Appellees Carney, Carney, and Howard are the grandchildren of Katherine G. Mallison. Mary Klein was Katherine Mallison's daughter. ¹

Appellees' amended complaint contained two counts: one sounded in infliction of emotional distress, and the second was premised on the mishandling of a dead body. The case was tried to a jury, which returned verdicts in favor of all appellees, and against both appellants.

On appeal appellants assign four alleged errors by the trial court for review.

I

Appellants' first assigned error contends:

"The trial court erred, to the prejudice of the defendants, in failing to direct a verdict in favor of the defendants and against the plaintiffs, Richard Carney, Peter M. Carney, Katherine K. Howard and Mary Mallison Klein, at the close of the plaintiffs' evidence on the issue of compensatory damages."

A cause of action for abuse of a dead body has long been recognized in this country. See, e.g., Brownlee v. Pratt (1946), 77 Ohio App. 533, 537-538, 33 O.O. 356, 358, 68 N.E.2d 798, 800-801.

"The policy of the law to protect the dead and preserve the sanctity of the grave comes down to us from ancient times, having its more immediate origin in the ecclesiastical law. This salutary rule recognizes the tender sentiments uniformly found in the hearts of men, the natural desire that there be repose and reverence for the dead, and the sanctity of the sepulcher."

The tort of infliction of serious emotional distress, by contrast, is of more recent origin. In Schultz v. Barberton Glass Co. (1983), 4 Ohio St.3d 131, 4 OBR 376, 447 N.E.2d 109, the Supreme Court recognized the existence of a cause of action for the negligent infliction of emotional distress without a contemporaneous physical injury. The Supreme Court held, in Yeager v. Local Union 20 (1983), 6 Ohio St.3d 369, 6 OBR 421, 453 N.E.2d 666, that one who intentionally or recklessly causes serious emotional distress to another by extreme and outrageous conduct is subject to liability for such emotional distress. This court, in Pyle v. Pyle (1983), 11 Ohio App.3d 31, 34, 11 OBR 63, 66, 463 N.E.2d 98, 103, set forth the following elements of an action for the intentional infliction of serious emotional distress:

"In order to recover on an action for intentional infliction of serious emotional stress four elements must be proved: 1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; 2) that the actor's conduct was so extreme and outrageous as to go 'beyond all possible bounds of decency' and was such that it can be considered as 'utterly intolerable in a civilized community,' Restatement of Torts 2d (1965) 73, Section 46, comment d; 3) that the actor's actions were the proximate cause of plaintiff's psychic injury; and 4) that the mental anguish suffered by plaintiff is serious and of a nature that 'no reasonable man could be expected to endure it,' Restatement of Torts 2d 77, Section 46, comment j. It is not necessary that bodily injury or any physical impact be shown."

In their amended complaint, appellees alleged that the appellants acted in a "willful, wanton, malicious, reckless, and negligent manner."

Appellants readily concede the existence, in the abstract, of both causes of action. Nevertheless, the appellants moved for directed verdicts ² as to both counts.

A. With regard to the emotional distress claim presented in the first count of the complaint, appellants argue that the four descendents of Katherine G. Mallison failed to present evidence that they suffered serious emotional distress after hearing that their ancestor's remains had been disinterred and thrown on a refuse heap. The appellees testified that they were horrified, angry, and saddened, and that they wept and were unable to sleep. None adduced evidence to show that he incurred expenses for medical or psychological treatment.

Appellants contend that the appellees' evidence was insufficient to make out a case for serious emotional distress, when measured against the "factors" set out in Paugh v. Hanks (1983), 6 Ohio St.3d 72, 6 OBR 114, 451 N.E.2d 759, a case involving a series of automobile accidents. Paragraph three of the Paugh syllabus states:

"3. Where a bystander to an accident states a cause of action for negligent infliction of serious emotional distress, the emotional injuries sustained must be found to be both serious and reasonably foreseeable, in order to allow a recovery."

The foreseeability factor is further elucidated in Paragraph 3b of the syllabus:

"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 vicitim (if any) were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship."

This court is not convinced that the factors listed therein necessarily control the foreseeability of emotional injury in a case such as the one at bar, in which a grave has been desecrated. Legal authorities have long acknowledged the likelihood of mental anguish resulting from the mishandling of dead bodies. See infra. The syllabus law in Paugh, supra, does not lay down mandatory requirements, but rather "factors" to be considered in a similar accident case. The syllabus law must be read in the context of "the facts of the specific case before the Court for adjudication." Supreme Court Rule for the Reporting of Opinions 1(B).

Finally, we note the caveat of the Supreme Court in Paugh that "the determination in both seriousness and reasonable foreseeability must be accomplished on a case-by-case basis. * * * [N]o fixed or immutable rule is capable of resolving all the cases brought under an action for negligent infliction of serious emotional distress." Id. at 80, 6 OBR at 121, 451 N.E.2d at 767.

The trial court did not err in denying appellants' motion for directed verdict on the first count.

B. Regarding the claim for mishandling a dead body contained in the second count of their complaint, appellants argue that only Mary Klein had legal standing to bring the claim, and that consequently a directed verdict should have been granted against the three plaintiffs who were grandchildren of Katherine G. Mallison.

The issue appears to have been waived by appellants. The record discloses that appellants...