Opinion
No. CV 09-5030482-S
February 2, 2010
MEMORANDUM OF DECISION RE CARMON FUNERAL HOME, INC.'S MOTION TO STRIKE
The plaintiffs, Madeline Ginsberg, Lisa Ann Cleveland, Randy Scott Ginsberg and Marc Ginsberg, the widow, daughter, son and nephew, respectively, of Donald Ginsberg (decedent) commenced this action in May of 2009 against the defendants, Manchester Memorial Hospital and Carmon Funeral Homes, Inc. (Carmon). The complaint alleges that on August 23, 2007, after his death, the decedent's corpse was under the defendant's care and custody. It further alleges that while under such care and custody, the defendant caused, or allowed, the decedent's corpse to be "damaged" by a gash on the forehead, bruised eyes and a broken nose. The widow alleges that the defendant owed her a duty to safeguard the integrity of the decedent's body while it was in defendant's custody so that she could "exercise her right to bury the body without interference." The children and the nephew each allege a right to the disposition of the decedent's body. Each plaintiff has brought three separate claims against the defendant. Counts five through eight allege the "interference with dead bodies." Counts thirteen through sixteen allege the intentional infliction of emotional distress. Additionally, counts twenty-one through twenty-four allege the negligent infliction of emotional distress.
Manchester Memorial Hospital has filed a separate motion to strike which is the subject of a separate memorandum of decision filed on this date. Hereinafter, the only defendant referred to in this memorandum will be Carmon Funeral Homes.
The defendant moves to strike counts five through eight on the ground that the plaintiffs fail to state a legally cognizable action. It also moves to strike counts thirteen through sixteen and twenty-one through twenty-four on the ground that they fail to state a claim upon which relief may be granted. In the alternative, the defendant moves to strike all claims brought by Marc Ginsberg for failure to state a claim upon which relief may be granted.
Although the defendant's motion seeks to strike the complaint in its entirety, it does later identify specific counts. Thus, the court assumes that it only seeks to strike all of the counts directed towards it, and not the complaint in its entirety.
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In considering a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498.
The defendant moves to strike counts five through eight on the ground that Connecticut does not recognize a cause of action for interference with dead bodies. In the alternative, the defendant moves to strike the claims brought by the decedent's children and nephew on the ground that the defendant owed them no duty, even if Connecticut does recognize such an action. The defendant also moves to strike counts thirteen through sixteen on the ground that the plaintiffs have not alleged the essential elements of a cognizable claim for intentional infliction of emotional distress. Morever, the defendant seeks to strike counts twenty-one through twenty-four on the ground that the plaintiffs have failed to allege facts necessary to support a cause of action sounding in negligent infliction of emotional distress. Specifically, the defendant argues that the plaintiffs have failed to establish the existence of a duty or that the defendant's conduct posed an unreasonable risk of harm. In the alternative, the defendant moves to strike all claims made by Marc Ginsberg on the ground that he is not the decedent's immediate family member, and therefore, cannot recover against the defendant for any alleged damage to the decedent's corpse.
With respect to the claims for interference with dead bodies, the plaintiffs argue that Connecticut does recognize this cause of action, as evidenced by Del Core v. Mohegan Historic Housing Associates, 81 Conn.App. 120, 837 A.2d 902 (2004). With respect to the claims for intentional infliction of emotional distress, the plaintiffs contend that they have pleaded sufficient facts to establish all elements of such a claim. As to the claims for negligent infliction of emotional distress, each plaintiff asserts that the defendant's duty to them arose because it had control over the corpse, of which the plaintiffs had the right to dispose. Lastly, the plaintiffs argue that, as a nephew, Marc Ginsberg has a contingent right to the disposition of his uncle's body. Therefore, the defendant's duty extended to him, as well as to the other plaintiffs, because they are the decedent's family members. As such, they argue, it was foreseeable that they would be harmed by the mishandling of the decedent's body.
Interference with Dead Bodies
Section 868 of the Restatement (Second) of Torts provides: "One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the 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." 4 Restatement (Second), Torts § 868, p. 274 (1979). In its memorandum of law, the defendant argues that counts five through eight of the plaintiffs' complaint fail to state a claim because they attempt to state a cause of action for interference with dead bodies, which, while recognized in § 868 of the Restatement (Second) of Torts, is not recognized in Connecticut. In Del Core v. Mohegan Historic Housing Associates, supra, 81 Conn.App. 125, however, the court considered this provision of the Restatement (Second) of Torts and held that a family member may raise a claim for the negligent interference with the right to control the proper burial of a deceased person. The court stated, "[f]ew things are more cherished, respected, or sacred than the right to bury our dead. There is a cognizable and compensable interest . . . in the comfort of knowing that the deceased has been given a comfortable and dignified resting place." (Emphasis added; internal quotation marks omitted.) Id., 124.
In Del Core, the plaintiff sued her brother's landlord because he failed to timely notify her of her brother's death. Id., 121. As a result, the brother was buried in a pauper's grave, and according to the plaintiff, not given a proper burial. Id., 122-23. Thus, the plaintiff claimed that the landlord interfered with her right to the possession and disposition of her brother's remains. The court used the following two-part test to determine whether the landlord had a duty to the plaintiff: "(1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Id., 124-25. Although the court recognized the "importance" of the plaintiff's claim, it found that she failed under the second prong, as she had not alleged that the defendant ever had custodial control over her brother's body or that he had some special responsibility for its tenants. Id., 124-26. "Due respect for the burial rights of family members may reasonably be held to impose a duty . . . on those who have the right to control the body of the deceased." (Emphasis added.) Id., 125.
The court reasoned that a convalescent home might have such a duty because it had a special responsibility for its residents.
Although Del Core does not directly discuss the other language contained in § 868 of the Restatement (Second) of Torts, namely, liability for mutilating a dead body, a natural and logical implication of its holding is that a custodian of a dead body has a corollary duty to refrain from mutilating a corpse in its custody as any such damage may also interfere with the interest of family members in knowing that the deceased received a dignified burial. For example, families must rely on funeral homes and morticians to handle and preserve the corpse of their loved ones until it can be properly buried. "It cannot be doubted that [the court has] the inherent power to recognize new tort causes of action, whether derived from a statutory provision . . . or rooted in the common law . . . [T]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct . . . The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer." (Citations omitted; internal quotation marks omitted.) Rizzutto v. Davidson Ladders, Inc., 280 Conn. 225, 235-36, 905 A.2d 1165 (2006).
General Statutes § 7-69 provides in relevant part: "Removal of body of deceased person. No person except a licensed embalmer or funeral director . . . shall remove the body of a deceased person . . ."
"The Restatement of Torts is a statement of the general common law of the United States," (Internal quotation marks omitted.) Coville v. Liberty Mutual Ins. Co., 57 Conn.App. 275, 279-80, 748 A.2d 875, cert. granted, 253 Conn. 919, 755 A.2d 213 (2000) (appeal withdrawn March 30, 2001).
Further, as a matter of public policy, it is also reasonable and logical to conclude that a funeral home, as custodian, has a duty to preserve the corpse of the deceased. See Janicki v. Hospital of St. Raphael, 46 Conn.Sup. 204, 214, 744 A.2d 963 (1999) ("American courts have recognized a rule that, `where a nonofficial autopsy is performed without the consent of those who have the quasi-right of property in the corpse . . . the one responsible for such act is liable in damages'"). Accordingly, the court finds that a cause of action for the interference with dead bodies is sustainable under Connecticut law. See also W. Prosser W. Keeton, Torts, § 54, p. 362 (5th Ed. 1984) (discussing an action for negligent mishandling of corpses).
Having found that the claimed cause of action is proper, the next question is whether the plaintiffs have adequately pleaded such a claim. A claim for interference with the right to possession of a body sounds in negligence. Del Core v. Mohegan Historic Housing Associates, supra, 81 Conn.App. 122. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . If a plaintiff cannot prove all of those elements, the cause of action fails." (Citation omitted; internal quotation marks omitted.) Roach v. Ivari International Centers, Inc., 77 Conn.App. 93, 99, 822 A.2d 316 (2003). Therefore, in order to survive a motion to strike in the present case, the plaintiffs must have sufficiently pleaded all four elements of a negligence action.
The first inquiry under that standard is whether the plaintiffs sufficiently alleged that the defendant had a duty and to whom that duty extends. "The existence of a duty is a question of law and [o]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand." (Internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). Although Section 868 of the Restatement (Second) of Torts allows an action for the interference with dead bodies, it limits recovery to "a member of the family of the deceased who is entitled to the disposition of the body." Thus, the funeral home's duty is confined to that specific person and not to all of the decedent's family members.
As to the claim of interference with dead bodies, the scope of the defendant's duty does not extend to Lisa Ann Cleveland, Randy Scott Ginsberg and Marc Ginsberg as the duty claimed by each of those plaintiffs arises from their alleged "right to the disposition of the body of the decedent." While the court recognizes that all of the plaintiffs allege that they are entitled to the disposition of the deceased's body and that they were injured when the defendant interfered with that right, General Statutes § 45a-318(c), provides that the right to the custody and control of a deceased's corpse remains with the surviving spouse, unless the decedent designated another person, or the spouse is unwilling or unable to exercise such right. None of the other plaintiffs have alleged facts which suggest that their rights are superior, or even equivalent, to the decedent's widow, Madeline Ginsberg. Nor have they alleged facts which suggest that she is unwilling or unable to exercise her right to control the disposition of her husband's corpse. Therefore, as a matter of law, only Madeline Ginsberg, the surviving spouse, has the right to control the disposition of the body. See § 45a-318(c)(1). Consequently, Lisa Ann Cleveland, Randy Scott Ginsberg and Marc Ginsberg have only a contingent right to the disposition of the decedent's body and may not recover on a claim of interference with a dead body. Accordingly, the motion to strike counts six, seven and eight must be granted.
Section 45a-318(c) provides in relevant part: "In the absence of a written designation . . . the following individuals, in the priority listed, shall have the right to custody and control of the disposition of a person's body upon the death of such person . . .
(1) The deceased person's spouse, unless such spouse abandoned the deceased person prior to the deceased person's death or has been adjudged incapable by a court of competent jurisdiction . . ."
This aspect of the decision is not based on a conclusion that the defendant's alleged actions had no negative impact on the decedent's children and nephew. The court recognizes that the circle of loved ones affected by a mutilated corpse may include more than just the surviving spouse. However, the court is not willing to expand the funeral home's duty to beyond the person who has the right to the disposition of the body because "[i]t is . . . part of the judicial task . . . of setting some reasonable limits on the legal consequences of wrongful conduct . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree." (Citations omitted; internal quotation marks omitted.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 349, 780 A.2d 98 (2001).
Madeline Ginsberg, on the other hand, has adequately pleaded a cause of action for the interference with a dead body. She has alleged that she is the surviving spouse and had a legal right to bury the body without interference. She further alleged that the defendant owed her a duty not to injure or mutilate the decedent's body while it was in the defendant's care and control; that the defendant breached its duty to her by causing or permitting damage to the deceased's body; and, as a result she has suffered both physical and emotional injury. Construing these allegations in a light most favorable to sustaining her claims; Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997); the defendant's motion to strike count five as to Madeline Ginsberg must be denied.
Intentional Infliction of Emotional Distress
In counts thirteen through sixteen, the plaintiffs allege that the defendant intentionally inflicted emotional distress upon them. The defendant sets forth two arguments in support of its motion to strike these counts. First, it argues that these counts should be stricken because they have failed to allege any facts which support the conclusion that it acted intentionally. Next, they argue that the plaintiffs have failed to allege sufficient facts to establish extreme and outrageous conduct by the defendant. Consequently, it argues that the plaintiffs lack the critical elements of their claims for intentional infliction of emotional distress.
The plaintiffs respond that they do not have to allege the intent to cause harm. Rather, they argue that they only have to allege that the defendant knew, or should have known, that emotional distress was the likely result of its conduct. Morever, they argue that the question of whether the conduct was sufficiently outrageous or extreme is a question of fact for the jury, and therefore, the motion to strike these counts is premature.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . .
"Liability for intentional infliction of emotional distress requires conduct that exceeds `all bounds usually tolerated by decent society.' . . . Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, `Outrageous!' . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210-11, 757 A.2d 1059 (2000).
As to these counts, the plaintiffs allege that the defendant "caused or permitted to be caused" physical damage to the decedent's corpse while it was in the defendant's custody. They further allege that the defendant knew, or should have known, that their emotional distress was a likely result of these actions and that causing or permitting the body of a dead man to suffer the kind of damage that it suffered while under its custody (gash on forehead, eyes bruised and nose broken) was extreme and outrageous. (Complaint, Counts 9 through 12.)
Although the plaintiffs have arguably satisfied the first element of a claim of intentional infliction of emotional distress, given the facts alleged, the court finds that the conduct is not sufficiently outrageous to meet the high bar established by our appellate courts for such a claim. In order to maintain a cause of action for intentional infliction of emotional distress, the alleged conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." (Internal quotation marks omitted.) Appleton v. Board of Education, supra, 254 Conn. 211. "Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Internal quotation marks omitted.) Id. Without more, the court cannot conclude that the act of harm to the decedent's corpse was so "extreme in degree" to be considered "beyond all possible bounds of decency." For this reason, the defendant's motion to strike counts thirteen, fourteen, fifteen and sixteen must be granted.
Negligent Infliction of Emotional Distress
The defendant moves to strike counts twenty-one through twenty-four of the plaintiffs' complaint on two grounds. First, the defendant asserts that "Connecticut courts have not affirmatively established that morticians or funeral homes owe a duty to family members of the decedent." The defendant next argues that the plaintiffs have failed to establish that the alleged conduct posed an unreasonable risk of harm. The plaintiffs counter that the duty in question extends to anyone who intentionally, recklessly or negligently mutilates a corpse. Moreover, the plaintiffs assert that, in this case, mental distress was not a remote consequence, and thus, foreseeable.
The plaintiffs incorporate these arguments "by reference" to its memorandum in opposition to the defendant Manchester Memorial Hospital's motion to strike.
Some judges of the Superior Court have recognized that morticians and funeral homes owe a duty of care to the immediate family members of a decedent in connection with claims of infliction of emotional distress. In Begin v. Driscoll Mortuary, Superior Court, judicial district of Litchfield, Docket No. 0050103 (April 25, 1990, Pickett, J.) ( 1 Conn. L. Rptr. 549, 550), the court denied a motion to strike a count that alleged emotional distress as a result of the defendant's failure to repair and preserve the body of a decedent in a "workmanlike manner." "[W]hen viewed in a light favorable to the pleader, it is conceivable that the mortuary's failure to prepare the body for a proper burial could pose an unreasonable risk of emotional distress to the decedent's family." Id. See also Himberg v. Shure Funeral Home, Superior Court, judicial district of New Haven, Docket No. CV 99 0266920 (February 20, 2001, Robinson, J.) ( 29 Conn. L. Rptr. 201, 202) (holding that, in certain circumstances, in the context of a claim of negligent infliction of emotional distress, there may be a duty "owed by funeral homes or mortuaries to the relatives of a decedent"); Witt v. Yale-New Haven Hospital, 51 Conn.Sup. 155, 172, 977 A.2d 779 (2008) (in Connecticut, morticians appear to owe a duty of care to the immediate family members of a decedent in connection with a claim of negligent infliction of emotional distress).
Compare Neville v. Honan, Superior Court, judicial district of Danbury, Docket No. 315934 (August 19, 1994, Moraghan, J.) (absent a governing contract, funeral home did not owe duty to next of kin).
To survive a motion to strike a claim of negligent infliction of emotional distress, a plaintiff is required to allege facts supporting the following elements: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiffs distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiffs distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003). The requirement of forseeability in negligent infliction of emotional distress claims is different from that required in general negligence actions. Scanlon v. Connecticut Light Power, 258 Conn. 436, 447-48, 782 A.2d 87 (2001). "[T]he defendant is not responsible for the plaintiffs' emotional distress unless it or its agents knew or should have realized that its conduct involved an unreasonable risk of causing emotional distress . . . [which] might result in illness or bodily harm." (Internal quotation marks omitted.) Id.
Here, Madeline Ginsberg, Lisa Ann Cleveland and Randy Scott Ginsberg have sufficiently pleaded a cause of action for negligent infliction of emotional distress. First, as discussed above, respect for the dead and considerations of public health require family members to entrust the disposition of human remains to funeral homes. Additionally, funeral homes routinely deal with grieving and mourning family members. As such, it is foreseeable that, having entrusted the funeral home with the body of their loved one, the family members would be harmed if they were subjected to the sight of the mutilated corpse of the deceased caused by negligent conduct of the funeral home. Further, on the basis of public policy, responsibility for negligent conduct on the part of the funeral home in failing to safeguard the bodily integrity of the decent's corpse should be extended to the immediate family.
For reasons stated below, this court finds that Marc Ginsberg has not sufficiently pleaded that the funeral home owed him a duty. Therefore, he cannot recover under a claim of negligent infliction of emotional distress.
Having established that a funeral home owed a duty to them as immediate family members of the deceased, Madeline Ginsberg, Lisa Ann Cleveland and Randy Scott Ginsberg have also pleaded that the deceased's body was damaged while in the care and custody of the defendant by conduct of the defendant; that this conduct created an unreasonable and foreseeable risk of causing them emotional distress severe enough to result in illness or physical harm; and, as a result, they, in fact, suffered emotional distress. These allegations sufficiently set forth the requisite elements of a claim of negligent infliction of emotional distress. "The question of whether the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress which might in turn result in illness or bodily harm to the plaintiff is a proper question for the trier of fact." Skirkanich v. Waterbury Hospital, supra, Superior Court, Docket No. CV 01 00686.
Although the defendant also argues that "the plaintiffs have alleged no facts by which it may be determined that they were exposed to or had knowledge of the alleged injuries to the decedent, such that they may recover for emotional distress allegedly suffered," the complaint reveals the contrary. Paragraph thirty, which is incorporated into counts twenty-one, twenty-two and twenty-three states, "the plaintiff, upon seeing the above-stated damage rendered to the body of the deceased . . . suffered . . . distress." (Emphasis added.) Although the factual allegations are sparse, they are sufficient. Since the court finds that Madeline Ginsberg, Lisa Ann Cleveland and Randy Scott Ginsberg have sufficiently alleged a claim of negligent infliction of emotional distress, the defendant's motion to strike counts twenty-one, twenty-two and twenty-three must be denied.
Whether Marc Ginsberg Has Sufficiently Stated a Claim
The defendant moves to strike counts eight, sixteen and twenty-four on the ground that it owed no duty to Marc Ginsberg because his relationship to the decedent is too remote. The plaintiffs counter that the funeral home's duty extended to anyone who had the right to control the disposition of the decedent's body and, since they have alleged that Marc Ginsberg was possessed of such a right, he has sufficiently pleaded his claims. For the reasons previously addressed, any duty of care for negligent conduct by the funeral home does not extend to Marc Ginsberg as he had no more than a contingent right to the disposition of the body of the decedent. Furthermore, he is not a member of the immediate family and, therefore, his damages, if any, were not foreseeable. Accordingly, the defendant's motion to strike counts eight, sixteen and twenty-four must be granted.
CONCLUSION
For all the foregoing reasons, the defendant's motion to strike counts five, twenty-one, twenty-two and twenty-three of the plaintiffs' complaint is hereby denied. The motion to strike counts six, seven, eight, thirteen, fourteen, fifteen, sixteen and twenty-four is hereby granted.