Fox v. City of Bellingham

• Decision Date: 18 March 2021
• Docket Number: No. 98514-6 (certified C19-0955RSL),98514-6 (certified C19-0955RSL)
• Citation: 482 P.3d 897
• 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

482 P.3d 897

Certification from the United States District Court for the Western District of Washington in Robert FOX, Plaintiff,

v.CITY OF BELLINGHAM, Defendant.

No. 98514-6 (certified C19-0955RSL)

Supreme Court of Washington, En Banc.

Argued November 17, 2020

Filed : March 18, 2021

Jacob Michael Downs, Gretchen J. Hoog, Corr Downs PLLC, 100 W. Harrison St. N440, Seattle, WA, 98119-4163, for Plaintiff(s).

Shane P. Brady, City of Bellingham, 210 Lottie St., Bellingham, WA, 98225-4089, for Defendant(s).

OWENS, J.

¶ 1 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 of Bellingham Fire Department placed medical tubes inside his deceased brother as part of a training exercise without receiving consent from the family.

¶ 2 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.

¶ 3 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.

I. STATEMENT OF FACTS

¶ 4 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, 2020 WL 2029397 (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 the nonmoving party. Keck v. Collins , 184 Wash.2d 358, 370, 357 P.3d 1080 (2015) (citing Folsom v. Burger King , 135 Wash.2d 658, 663, 958 P.2d 301 (1998) ).

¶ 5 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.

¶ 6 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.

¶ 7 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.

II. CERTIFIED QUESTIONS PRESENTED

1. Whether only those individuals identified as "next of kin" as defined by RCW 68.50.160 at the time of a decedent's death have standing to bring a claim for tortious interference with a corpse?

2. Whether Mr. Fox, the decedent's brother, is within the class of plaintiffs that may bring a claim for tortious interference with a corpse?

III. ANALYSIS

A. This Court Has Not Addressed Standing for Relatives Like Mr. Fox in an Action for Tortious Interference with a Corpse

¶ 8 We review certified questions from the federal courts de novo. Brady v. Autozone Stores, Inc. , 188 Wash.2d 576, 580, 397 P.3d 120 (2017).

¶ 9 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.

¶ 10 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.

¶ 11 We disagree. In Wright , this court allowed two parents to sue for an improper burial of their child. Id . at 17, 89 P. 172. Thus, while Wright held that lawful custodians of a deceased body could bring a claim, it never restricted others from doing so. Additionally, none of the cases following Wright limited standing.

¶ 12 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) (expanding tort beyond wrongful burial for mother); Adams v. King County , 164 Wash.2d 640, 192 P.3d 891 (2008) (declining to adopt Restatement⁴ version of tort for mother suing on behalf of child).

¶ 13 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.

B. Tortious Interference with a Corpse Was Historically Rooted in Property Law Because Suits for Emotional Damages Alone Were Traditionally Barred

¶ 14 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, 89 P. 172 ; Corcoran v. Postal Telegraph-Cable Co. , 80 Wash. 570, 575, 142 P. 29 (1914) (mental suffering actions were limited to negligence cases with physical injury, breach of marriage contracts, and willful wrongs typically affecting liberty, character, reputation, personal security, or domestic relations); RESTATEMENT OF TORTS § 46 ( AM. LAW INST. 1934) (suits for conduct intended to cause emotional distress generally not allowed).

¶ 15 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, 89 P. 172 (plaintiffs bringing contract suit to recover for mental anguish); Larson v. Chase, 47 Minn. 307, 50 N.W. 238 (1891) (mutilation of a corpse is not a trespass against property but an action for injured feelings). The Restatement ’s reporters recognized this "quasi-property" doctrine as a legal fiction, noting that a corpse does not easily fit 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 ." RESTATEMENT ( SECOND ) OF TORTS § 868 cmt. a. (emphasis added); Carney v. Knollwood Cemetery Ass'n , 33 Ohio App. 3d 31, 36, 514 N.E.2d 430 (1986) (the "quasi-property" theory was used to "conceal[ ] the real basis for damages, which is mental anguish").

¶ 16 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 improper burial of their dead... a tort or injury against the person." Wright , 46 Wash. at 19, 89 P. 172 ; see also Larson , 50 N.W. at 239-40.

¶ 17 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.

C. The Basis for Treating the Corpse as Property Has Eroded—Washington Law Now Recognizes Recovery for Emotional Injuries without Physical Harm

¶ 18 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.

¶ 19 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 Wash.2d 52, 60...