Rekosh v. Parks

• Decision Date: 01 September 2000
• Docket Number: No. 2-99-0928.,2-99-0928.
• Citation: 249 Ill.Dec. 161,735 N.E.2d 765,316 Ill. App.3d 58
• Parties: Roy REKOSH, Thomas Rekosh, David Rekosh, and Ronald Rekosh, Plaintiffs-Appellants, v. June PARKS; Arlington Cemetery, Inc., d/b/a Elm Lawn Cemetery Corp.; and Geils Funeral Home, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

735 N.E.2d 765

316 Ill. App.3d 58

249 Ill.Dec. 161

Roy REKOSH, Thomas Rekosh, David Rekosh, and Ronald Rekosh, Plaintiffs-Appellants, v. June PARKS; Arlington Cemetery, Inc., d/b/a Elm Lawn Cemetery Corp.; and Geils Funeral Home, Defendants-Appellees.

No. 2-99-0928.

Appellate Court of Illinois, Second District.

September 1, 2000.

Robert E. Jones, Kathleen R. Ryding, Mark S. Bishop, Huck, Bouma, Martin, Jones & Bradshaw, P.C., Wheaton, for David Rekosh, Ronald Rekosh, Roy Rekosh, Thomas Rekosh.

Thomas C. Hunt, Marshall J. Subach, Hunt, Kaiser, Bush & Aranda, Ltd., Bensenville, for June Parks.

John J. Pcolinski, Jr., Guerard, Kalina & Butkus, Wheaton, for Arlington Cemetery, Inc.

Brian P. Shaughnessy, Michelle J. Rozovics, Cremer, Kopon, Shaughnessy & Spina, LLC, Chicago, for Geils Funeral Home.

Justice RAPP delivered the opinion of the court:

Plaintiffs, Roy Rekosh, Thomas Rekosh, David Rekosh, and Ronald Rekosh, appeal from the trial court's order granting the motions to dismiss of defendants, June Parks; Arlington Cemetery, Inc., d/b/a Elm Lawn Cemetery Corporation (Cemetery); and Geils Funeral Home (Funeral Home). Plaintiffs contend that the trial court erred in (1) dismissing their claim for negligent infliction of emotional distress; (2) dismissing their claim for intentional infliction of emotional distress; (3) dismissing their claim for interference with the right of the next of kin to possession and preservation of the body of the deceased; (4) failing to recognize an implied private cause of action under the Crematory Regulation Act (Act) (410 ILCS 18/1 et seq. (West 1998)); and (5) failing to recognize an implied private cause of action under the Funeral Directors and Embalmers Licensing Code (Code) (225 ILCS 41/1-1 et seq. (West 1998)).

I. FACTS AND PROCEDURAL HISTORY

This case comes before us after the trial court granted defendants' motions to dismiss. In determining whether to grant a motion to dismiss, a court must accept as true the well-pleaded allegations of fact contained in the complaint and construe all reasonable inferences therefrom in favor of the plaintiff. See Abbasi v. Paraskevoulakos, 187 Ill.2d 386, 388, 240 Ill.Dec. 700, 718 N.E.2d 181 (1999).

In plaintiffs' third amended complaint (complaint), plaintiffs charged all three defendants with negligent infliction of emotional distress in count I; intentional infliction of emotional distress in count II; and interference with the right of the next of kin to possession and preservation of the body of the deceased in count III. Plaintiffs also claimed a violation of the Crematory Regulation Act by the Cemetery in count IV, and a violation of the Funeral Directors and Embalmers Licensing Code by the Funeral Home in count V.

Plaintiffs' complaint stated that plaintiffs are the sons of Eugene H. Rekosh, who died October 13, 1997. Defendant June Parks was married to Eugene for 17 years until they were divorced on December 12, 1996, and is not the mother of plaintiffs. On April 8, 1997, Eugene purportedly executed a will, which disinherited plaintiffs, named June Parks as executor, and bequeathed all of his property to her. Plaintiffs claimed to have enjoyed a warm, affectionate, and natural relationship with their father prior to his death.

Plaintiffs alleged that, shortly after Eugene's death, June Parks met with agents of the Funeral Home and the Cemetery and falsely represented that she was the spouse of Eugene Rekosh. June Parks made arrangements for Eugene's body to be cremated and for his remains to be returned to her. Neither the Funeral Home nor the Cemetery properly secured a cremation authorization form as required by the Act.

The Act provides that a crematory shall not cremate human remains until it has received, inter alia, a cremation authorization form signed by an authorizing agent. 410 ILCS 18/20(a)(1) (West 1998). The Act lists the persons who may serve as the authorizing agent, which include, in order of priority, the surviving spouse, unless the deceased authorized his or her own cremation pursuant to the Act or the executor is acting pursuant to decedent's written directions; the decedent's surviving adult children; the decedent's surviving parent; and the next of kin under the laws of descent and distribution. 410 ILCS 18/15(a) (West 1998).

The cremation authorization form is missing information required by the Act, including the relationship of the authorizing agent to the deceased; written confirmation by the authorizing agent that he has notified the other adult children; the manner in which the final disposition of the cremated remains is to take place, if known; and the name of the person authorized to receive the cremated remains. The cremation authorization form contains the signature of plaintiff Ronald Rekosh as authorizing agent. Ronald Rekosh's purported signature was witnessed by a Mr. Geils, an agent or employee of the Funeral Home. Plaintiffs claim that Ronald Rekosh did not sign the cremation authorization form. After the cremation, either the Funeral Home or the Cemetery gave June Parks the remains, which she dumped in her backyard without notifying plaintiffs or securing their permission. Plaintiffs allege that they had intended to bury their father's body and were violently opposed to cremation. As a result of defendants' actions, plaintiffs claim to have been deprived of their right to make burial decisions and grieve their father's death. Plaintiffs claim severe and permanent emotional harm and injury.

Defendants filed motions to dismiss. The trial court granted defendants' motions to dismiss plaintiffs' complaint with prejudice. Plaintiffs timely appealed.

II. DISCUSSION

We begin by noting that the trial court's order states no basis for the dismissal of plaintiffs' claims, and transcripts of the proceedings were not provided. An order that sustains a motion to dismiss without specifying the grounds upon which it is based places before the reviewing court each issue raised by the motion. Mid-Town Petroleum, Inc. v. Dine, 72 Ill.App.3d 296, 298-99, 28 Ill.Dec. 261, 390 N.E.2d 428 (1979).

Although brought pursuant to three different sections of the Code of Civil Procedure, defendants' motions to dismiss were all based upon plaintiffs' failure to state causes of action upon which relief can be granted, which are properly brought pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1998)). We must examine whether the allegations of the complaint, when viewed in a light most favorable to the plaintiffs, are sufficient to state a cause of action upon which relief can be granted. Abbasi, 187 Ill.2d at 391, 240 Ill.Dec. 700, 718 N.E.2d 181. A motion brought under section 2-615 admits as true all well-pleaded facts, but not conclusions of law or factual conclusions that are unsupported by allegations of specific facts. Lagen v. Balcor Co., 274 Ill.App.3d 11, 16, 210 Ill. Dec. 773, 653 N.E.2d 968 (1995). A cause of action will not be dismissed on the pleadings unless it clearly appears that there is no set of facts that can be proved that will entitle the plaintiff to recover. Abbasi, 187 Ill.2d at 391, 240 Ill.Dec. 700, 718 N.E.2d 181. Our review of an order of dismissal is de novo. Abbasi, 187 Ill.2d at 391,

240 Ill.Dec. 700,

718 N.E.2d 181.

A. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Prior to 1983, the "impact rule" was applied in cases of negligent infliction of emotional distress. A plaintiff could recover for the physical injury that developed because of emotional distress only if he received either physical injury or some impact to his person at the occurrence of the negligent conduct that caused the emotional distress. Braun v. Craven, 175 Ill. 401, 413, 51 N.E. 657 (1898). In Rickey v. Chicago Transit Authority, 98 Ill.2d 546, 555, 75 Ill.Dec. 211, 457 N.E.2d 1 (1983), our supreme court recognized a limited exception to the "impact rule" known as the "zone of physical danger rule." The "zone of physical danger rule" requires that the bystander must have been in such proximity to the accident that injured the direct victim that there was a high risk to himself of physical impact. Rickey, 98 Ill.2d at 555, 75 Ill.Dec. 211, 457 N.E.2d 1. The bystander must also show physical injury or illness resulting from the emotional distress caused by the defendant's negligence. Rickey, 98 Ill.2d at 555, 75 Ill.Dec. 211, 457 N.E.2d 1.

Plaintiffs concede that the allegations in count I are insufficient to state a cause of action for negligent infliction of emotional distress. However, plaintiffs urge this court to expand the recovery available for this tort under the special circumstances of the negligent mishandling of a corpse by carving out an exception to the "impact rule" of Braun and the "zone of physical danger rule" announced in Rickey.

We decline this opportunity to expand upon present law and conclude that plaintiffs' cause of action for negligent infliction of emotional distress is foreclosed by our supreme court's decisions in Braun and Rickey. See Courtney v. St. Joseph Hospital, 149 Ill.App.3d 397, 403, 102 Ill.Dec. 810, 500 N.E.2d 703 (1986). Therefore, count I of plaintiffs' complaint was properly dismissed as to each defendant for failure to state a cause of action.

B. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The next claim brought against all three defendants and dismissed by the trial court was for intentional infliction of emotional distress. In order to state a cause of action for this tort, a party must allege facts to establish that (1) the defendant's conduct was extreme and outrageous; (2) the defendant either intended that his conduct should inflict severe emotional distress or knew that there was a high probability that his conduct would cause severe emotional distress; and (3) the defendant's conduct in fact caused severe emotional distress. Doe v. Calumet City, 161 Ill.2d 374, 392, 204 Ill.Dec. 274, 641 N.E.2d 498 (1994).

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