Lawyer v. Kernodle, 83-1301
| Citation | 721 F.2d 632 |
| Decision Date | 16 November 1983 |
| Docket Number | No. 83-1301,83-1301 |
| Parties | John LAWYER, Appellant, v. Jefferson D. KERNODLE and Upsher Laboratories, Inc., Appellees. Charles Nall, James Lawson, James Carter. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Mark T. Kempton, Sedalia, Mo., for appellant.
Larry McMullen, James D. Conkright, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., for appellees.
Before LAY, Chief Judge, McMILLIAN, Circuit Judge, and DUMBAULD, * Senior District Judge.
John Lawyer appeals from the district court's order dismissing his complaint for damages brought against Jefferson D. Kernodle, a pathologist, and Upsher Laboratories, Inc. Lawyer's complaint sought damages for the negligent diagnosis of the cause of death of Diana Lawyer, John Lawyer's wife, under Missouri law and damages under 42 U.S.C. Sec. 1983 (1976) for the alleged denial of due process caused by Kernodle's "erroneous" and "premature" communication of his conclusions of the cause of death of Diana Lawyer. The district court dismissed the complaint on grounds of official immunity and lack of duty. 1 We affirm the judgment of the district court.
On July 10, 1981, the wife of Lawyer was found dead at her residence in rural Pettis County, Missouri. Thereafter, the coroner of Pettis County ordered an autopsy pursuant to Mo.Rev.Stat. Sec. 58.451.2 (1978) to determine if death was caused by criminal agency. As the coroner was not a physician, he had engaged the continuing services of Upsher Laboratories to perform autopsies for the county pursuant to Mo.Rev.Stat. Secs. 58.451.2 and 70.220. On July 11 1981, Dr. Kernodle, an employee of Upsher, performed an autopsy and rendered his opinion as to the cause of death. 2 This opinion became the official finding of the coroner. This finding, which Lawyer alleges to be erroneous, indicated that death was caused by trauma to the head. Further investigation and interrogation by the police produced additional evidence of criminal agency, and second degree murder charges were brought against Lawyer. These charges were eventually dismissed by the prosecutor in 1982.
The district court dismissed Lawyer's claim for negligent diagnosis on the basis that, under Missouri law, the defendants are entitled to the same official immunity which shields the coroner of Pettis County from civil liability for negligent acts. The district court also held that defendants owed no duty to plaintiff when they were acting in an official capacity on behalf of a political subdivision or the public as a whole. We agree with the district court that defendants owed no duty to plaintiff. Without the requisite duty, plaintiff's tort claim fails and we need not reach the issue whether defendants enjoyed official immunity under state law. 3
Under Missouri law, "Before an act is said to be negligent, there must exist a duty to the individual complaining." Dix v. Motor Market, Inc., 540 S.W.2d 927, 932 (Mo.App.1976). When a defendant performs an act under a statute creating a public duty, that defendant's duty is to the public and not to any individual. Nelson v. Freeman, 537 F.Supp. 602, 609 (W.D.Mo.1982); Parker v. Sherman, 456 S.W.2d 577, 580 (Mo.1970). The exception, of course, is when the statute also was intended to create a private cause of action. We do not find that to be the case here. Section 58.451.2, Mo.Rev.Stat. (1978), states that when there is (Emphasis added). The purpose of the autopsy performed by Dr. Kernodle was to assist the coroner in determining, pursuant to Mo.Rev.Stat. Sec. 58.451.2, whether Diana Lawyer had died as the result of criminal agency. This determination would be the basis of the state's decision whether to pursue criminal charges. Kernodle therefore was discharging a duty to the public as a whole and owed no specific duty to plaintiff.
In arguing that a duty did exist, Lawyer relies on his right of sepulture and his authorization of the autopsy. In describing the right of sepulture, the Missouri Court of Appeals stated:
The imposition of the duty to bury the dead carries with it the conferring on the person charged therewith of such rights as may be necessary to a proper performance. In the sense in which the word "property" ordinarily is used, one whose duty it becomes to bury a deceased person has no right of ownership over the corpse; but, in the broader meaning of the term, he has what has been called a "quasi property right" which entitles him to the possession and control of the body for the single purpose of decent burial. If the deceased person leave [sic] a widow, such right belongs to her ....
Rosenblum v. New Mt. Sinai Cemetery Association, 481 S.W.2d 593, 594-95 (Mo.App.1972) quoting Litteral v. Litteral, 131 Mo.App. 306, 111 S.W. 872, 873-74 (1908). Lawyer's right to bury thus confers a duty on others not to negligently interfere with this right. In this case there is no allegation that Lawyer's right to bury his deceased spouse was interfered with. The allegation instead is that Kernodle negligently diagnosed the cause of death. As noted above, any duty created from the diagnosis went to the public and not Lawyer individually.
Lawyer also argues that he consented to the autopsy and thus had a contractual right to a non-negligent diagnosis. This argument fails for two reasons. First, Lawyer's right was the right to bury his spouse. If the contractual consent put a duty upon Kernodle, the duty was to not interfere with Lawyer's right of a decent burial. Such interference would include unreasonably mutilating the body or refusing to return the body so it could be buried. There is no allegation of this type of interference. Second, Missouri law requires authorization for the performance of an autopsy "[e]xcept when directed by a public officer or agency authorized by law to order an autopsy ...." Rev.Stat.Mo. Sec. 194.115.1 (1978). This autopsy was directed by the coroner of Pettis County, who was authorized by law to do so, and therefore an authorization by Lawyer was not required. A duty would arise from the consent only if required.
With respect to the section 1983 claim, the district court held that there was no liability under the civil rights law when physicians or coroners have acted within the permissible discretion of their authority, and that Lawyer did not allege that these defendants acted outside the permissible scope of their statutory discretion. We agree.
In Butz v. Economou, 438 U.S. 478, 507-08, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978) the Supreme Court admonished: Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), sets the standard for qualified or "good faith" immunity: "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 4
We think it clear that Kernodle, in performing the autopsy of Diana Lawyer for Pettis County, was acting under color of state law and was exercising his professional judgment and discretion. His services were engaged pursuant to statutory authority and his opinion as to the cause of death became the basis of the government's decision whether to bring criminal charges. Lawyer urges that Kernodle was not a public official and therefore lacks...
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