Certification from U.S. Dist. Court for W. Dist. of Wash. v. City of Bellingham
Decision Date | 18 March 2021 |
Docket Number | No. 98514-6,98514-6 |
Parties | CERTIFICATION FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON IN ROBERT FOX, Plaintiff, v. CITY OF BELLINGHAM, Defendant. |
Court | Washington Supreme Court |
(certified C19-0955RSL)
En Banc
OWENS, J. — The United States District Court for the Western District of Washington asks us via certified question1 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 ofBellingham 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.
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 thenonmoving 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 wife2 is charged with the care of Mr. Ginn's remains.
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 adeceased 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 occasions3 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) ( ); Adams v. King County, 164 Wn.2d 640, 192 P.3d 891 (2008) ( ).
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.
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) ( ); RESTATEMENT OF TORTS § 46 (AM. LAW INST. 1934) ( ).
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 ( ); Larson v. Chase, 50 N.W. 238 (Minn. 1891) ( ). The Restatement's reporters recognized this "quasi-property" doctrine as a legal fiction, noting that a corpse does not easily fit into the 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) ( ).
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 improperburial 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.
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"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...
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