Culpepper v. Pearl Street Bldg., Inc.

• Decision Date: 11 July 1994
• Docket Number: No. 93SC458,93SC458
• Citation: 877 P.2d 877
• Parties: James F. CULPEPPER and Dagmar I. Culpepper, Petitioners, v. PEARL STREET BUILDING, INC., a Colorado corporation; Rayanne Mori; Loren Newton, d/b/a M & M Transport Company, and Loren Newton, Respondents.
• Court: Colorado Supreme Court

Page 877

877 P.2d 877

James F. CULPEPPER and Dagmar I. Culpepper, Petitioners, v. PEARL STREET BUILDING, INC., a Colorado corporation Rayanne Mori; Loren Newton, d/b/a M & M Transport Company, and Loren Newton, Respondents.

No. 93SC458.

Supreme Court of Colorado En Banc.

July 11, 1994.

Rehearing Denied Aug. 8, 1994.

Gorsuch Kirgis LLC, James A. Jablonski, Denver, for petitioners.

Cooper & Kelley, P.C., John R. Mann, Denver, for respondents Pearl Street Bldg., Inc. and Rayanne Mori.

Hall & Evans, Alan Epstein and James B. Powers, Denver, for respondents Loren Newton, d/b/a M & M Transport Co. and Loren Newton.

Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari to review the court of appeals decision in Culpepper v. Pearl Street Building, Inc., No. 92CA0729 (Colo.App. Apr. 29, 1993), an opinion not selected for publication. We are asked to decide whether the plaintiffs, whose deceased son's body was mistakenly cremated before an autopsy could be performed, suffered a compensable injury.

The trial court granted the summary judgment motion of the defendants, ruling that the plaintiffs could show no actual damages and that there was no evidence that the defendants had acted to intentionally cause emotional distress to the plaintiffs. The court of appeals affirmed, holding that damages for emotional distress were available only when a defendant's conduct was willful and wanton, and that there was no cause of action for negligent infliction of emotional distress resulting from mishandling of a dead body.

We affirm the results reached by the trial court and the court of appeals, and hold that the Culpeppers have no viable claims for conversion or outrageous conduct.

I.

The plaintiffs, James and Dagmar Culpepper (the Culpeppers), were the parents of James Culpepper, Jr. (Culpepper). On August 31, 1990, the Culpeppers' son, aged thirty-two, was found dead in his apartment. He had been dead approximately one week. The body was transported to the Jefferson County Coroner's office to determine the cause of death. Upon arrival, the body was marked and placed in a cooler. Also present in the cooler was the badly decomposed body of a suicide victim identified as James Connolly, who had died from a gunshot wound to the head.

The coroner's office had arranged for Connolly to be cremated by Pearl Street Building, Inc. (Pearl Street), after obtaining permission from Connolly's family. Defendant Rayanne Mori (Mori) was the owner and operator of Pearl Street. Mori arranged with Loren Newton (Newton), operator of M & M Transport Company, to pick up the body of James Connolly and bring it to Pearl Street for cremation. Newton and an assistant arrived at the coroner's office, and, for reasons that are disputed, mistakenly took Culpepper's body instead of Connolly's, and transported it to Pearl Street.

On arrival, Culpepper's body was placed in the crematory, and Mori began the cremation procedure. Meanwhile, the pathologist at the coroner's office discovered that Culpepper's body had been taken to the crematorium and that Connolly's body was still in the cooler. He telephoned Mori, who immediately ceased the cremation. Although the flesh was gone from the body, the skull was intact, and the remains were delivered to the Jefferson County Coroner for a positive identification of the body. The remains were subsequently released to Culpepper's parents, who arranged for completion of the cremation.

The Culpeppers later brought this action against the crematorium, the transportation company, Jefferson County, and several employees of each organization as individual defendants, asserting claims of conversion and destruction of property, breach of contract, outrageous conduct, and civil rights violations. ¹ They argued that the wrongful cremation of their son's remains prevented them from learning the cause of his death. ² Jefferson County and its employees who were individual defendants were subsequently dismissed from the suit, and the claims for breach of contract and civil rights violations were dismissed. The trial court granted the defendants' summary judgment motion on the claims for conversion and outrageous conduct. On the issue of conversion, the trial court ruled that, because the Culpeppers had not pleaded any actual damages, they were not entitled to exemplary damages. Furthermore, the trial court held, exemplary damages were not recoverable when a defendant's actions were merely negligent, but were only available when the action was undertaken in a willful and wanton manner. The trial court further found that summary judgment was appropriate on the Culpeppers' outrageous conduct claim because the Culpeppers could not show that the defendants engaged in the conduct with the specific intent of causing severe emotional distress. The court also reasoned that the Culpeppers could only recover for intentional infliction of emotional distress if they were present at the scene of the outrageous conduct.

The court of appeals affirmed, holding that exemplary damages for emotional distress related to the mishandling of a dead body, without evidence of physical injury, were recoverable only on a showing of willful and wanton conduct. The court of appeals, citing its ruling in Kimelman v. City of Colorado Springs, 775 P.2d 51 (Colo.App.1988), further held that the Culpeppers could not recover on a theory of negligent infliction of emotional distress resulting from the mishandling of a dead body because of Kimelman's holding that such a claim did not exist in this state. The court of appeals echoed the reasoning of the trial court in disposing of the claim of outrageous conduct.

II.

We first address the Culpeppers' claim of conversion. In their initial and numerous amended complaints, the Culpeppers alleged that the defendants were liable for the intentional destruction and conversion of their property, namely, the body of their son. They argued that the right to bury and preserve the remains of their son was a quasi-property right, with which the wrongful cremation by the defendants interfered.

The question of whether a person has a property right in the body of a deceased family member has never been addressed by this court. Clearly, there can be no property right in a dead body in a commercial sense, since a dead body cannot be bartered or sold. Some courts have recognized a quasi-property right in dead bodies for the limited purpose of seeing that the body is decently interred or disposed of. See 22A Am.Jur.2d Dead Bodies § 3 (1988) and cited cases; see also Whitehair v. Highland Memory Gardens, Inc., 174 W.Va. 458, 327 S.E.2d 438, 441 (1985) ("The quasi-property rights of the survivors include the right to custody of the body; to receive it in the condition in which it was left, without mutilation; to have the body treated with decent respect, without outrage or indignity thereto; and to bury or otherwise dispose of the body without interference.").

Historically, the notion of a quasi-property right arose to facilitate recovery for the negligent mishandling of a dead body. If the plaintiff could show that his property right had been harmed, he would avoid the burden of proving that his emotional distress was accompanied by physical injury. ³ See Strachan v. John F. Kennedy Memorial Hosp., 109 N.J. 523, 538 A.2d 346 (1988); Note, Damages: Pleading: Property: Who May Recover for Wrongful Disturbance of a Dead Body, 19 Cornell L.Q. 108, 110-11 (1933). In reality, however, the primary concern of the right is not the injury to the dead body itself, but whether the improper actions caused emotional or physical pain or suffering to surviving family members. The injury is seldom pecuniary; rather, damages are grounded in the mental and physical injuries of survivors. Scarpaci v. Milwaukee County, 96 Wis.2d 663, 292 N.W.2d 816, 821 (1980).

Under the fiction of a "quasi-property" right in the survivors, the Second Restatement of the Law of Torts has proposed a cause of action for tortious interference with dead bodies:

§ 868. Interference with Dead Bodies

One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon a body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.

Restatement (Second) of Torts § 868 (1979). Nevertheless, comment a to section 868 concedes that:

[t]he technical basis of the cause of action is the interference with the exclusive right of control of the body, which frequently has been called by the courts a "property" or a "quasi-property" right. This does not, however, fit very well 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 for the mental distress inflicted upon the survivor; and in reality the cause of action has been exclusively one for the mental distress.

Restatement (Second) of Torts § 868 cmt. a (1979) (emphasis added). Although courts recognize a cause of action for intentional mishandling of a dead body, ⁴ few have allowed a plaintiff to proceed on a claim of negligence. Section 868 of the Restatement represents the minority viewpoint, and most states that have considered it in the context of an action in negligence have declined to follow it. See, e.g., Gonzalez v. Metropolitan Dade County Pub. Health Trust, 626 So.2d 1030 (Fla.Dist.Ct.App.1993) (denying recovery to parents of dead infant who were given wrong body for burial because they sustained no physical injury and the defendant did not act maliciously, and rejecting theory of quasi-property right espoused by section 868); Courtney v. St. Joseph Hosp., 149 Ill.App.3d 397, 102 Ill.Dec. 810, 500 N.E.2d 703 (1986) (rejecting section 868 and...