§38.3 Who is Entitled to Maintain Action
The Case: Crawford v. J. Avery Bryan Funeral Home, Inc., 253 S.W.3d 149, 157 (Tenn. Ct. App.2007).
The Basic Facts: Various members of the Crawford family brought action against funeral home, a cremation facility and others alleging irregularities in the cremation of their son and brother. The decedent's wife did not bring suit.
The Bottom Line:
- "In Hill v. Travelers' Ins. Co., 154 Tenn. 295, 294 S.W. 1097 (1927), the wife of the decedent brought suit seeking damages for 'an unauthorized mutilation and exposure of the body of her deceased husband.' Id. The wife in Hill had given consent for an autopsy to be performed on her deceased husband. The consent was given subject to some limitations, including a requirement that the autopsy be conducted in a private place and the body could not be mutilated. The wife claimed neither of these conditions were met. The wife's claim was dismissed for failure to state a cause of action. Our Supreme Court reversed, stating, in part, as follows:
The case of Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am. St. Rep. 370, has been referred to many times in cases from other jurisdictions as the leading case on this question. It was there held that the right to the possession of a dead body for the purposes of decent burial is vested in the surviving husband or wife or next of kin, and that it is a right which the law will recognize and protect. While disaffirming the proposition that a corpse is property in the ordinary commercial sense, the court held that any interference with the right of possession for burial, by mutilating or otherwise disturbing the body, is an actionable wrong and a subject for compensation. Dealing with the measure of damages for such a wrong, the Supreme Court of Minnesota said:253 S.W.3d at 156-57, citing Hill, 294 S.W. at 1098-99.
'Wherever the act complained of constitutes a violation of some legal right of the plaintiff, which always, in contemplation of law, causes injury, he is entitled to recover all damages which are the proximate and natural consequence of the wrongful act. That mental suffering and injury to the feelings would be ordinarily the natural and proximate result of knowledge that the remains of a deceased husband had been mutilated, is too plain to admit of argument.'We have not been able to find any dissent from the general propositions asserted in Larson v. Chase, supra.
The plaintiff in the present case, having the undoubted right to refuse to permit an autopsy to be held at all, had the right to clothe her consent with any stipulations or limitations she might choose to make. The expressed limitation that the body should not be mutilated clearly negatives any consent on the part of the plaintiff that any portion of the body should be severed and removed. Also, we think the plaintiff had the right to dictate that the autopsy be held in private and not in a public place. The violation of either or both of these limitations on the permission given by the plaintiff for the autopsy was a trespass on her rights as defined in the authorities hereinabove cited.
It is our conclusion, therefore, that the declaration did state a cause of action against both of the defendants."
- "Two important concepts are revealed by Hill. First, 'mutilating or otherwise disturbing' a dead body is an actionable wrong. Second, it is the surviving spouse, if there is one, that has the right to possession and control of the body that the law protects. See also Foley v. St. Thomas Hospital, 906 S.W.2d 448, 453 (Tenn. Ct. App.1995) ('Plaintiff, as a surviving spouse, had the sole legal authority over the disposition of her husband's remains.'); Estes v. Woodlawn Memorial Park, Inc., 780 S.W.2d 759, 762 (Tenn. Ct. App.1989) ('Absent an expressed desire of deceased, the surviving spouse and, if no surviving spouse, the next of kin, has the right of custody and burial of the remains of the deceased. 25A C.J.S. Dead Bodies § 3, pp. 491, 492, notes 11, 12.')." Id. at 157.
- "The result in Hill is consistent with the [RESTATEMENT (SECOND) OF TORTS], § 868. This section of the [Restatement (Second)] provides as follows:
§ 868. Interference With Dead BodiesId. at 157-58.
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." (emphasis added)
- "When considering all of the above, we conclude that, in Tennessee, any tort claims for negligent, reckless or intentional interference with a dead body and the like can be brought only by the person or persons who have the right to control disposition of the body.FN6 Pursuant to Hill, it is the surviving spouse who has the superior right to control disposition of the body. Therefore, in the present case, the Trial Court correctly held that because Wife had the right to control disposition of the decedent's body, she alone had the right to bring the various tort claims against the Funeral Home and Tri-State.FN7 These claims were properly dismissed for lack of standing.
FN6 This would also include tort claims such as negligent and/or intentional infliction of emotional distress. It would not, however, include claims for breach of contract. In the present case, the plaintiffs were not a party to the contract with the Funeral Home and, on appeal, Teri Crawford does not argue that she was a party to any contract with the Funeral Home or Tri-State.Id. at 159-60.
FN7 Since the decedent in the present case had a surviving spouse, the issue of priority among next of kin is not an issue on this appeal. The issue of who has control over disposition of a body when there is no surviving spouse is discussed at length in Akers v. Buckner-Rush Enterprises, Inc., [270 S.W.3d 67 (Tenn. Ct. App. 2007)]."
Other Sources of Note: Akers v. Buckner-Rush Enterprises, Inc., 270 S.W.3d 67 (Tenn. Ct. App. 2007) (the order of priority among relatives of the deceased for bringing tort claims arising from unauthorized mutilation of a dead body is as follows: (1) the spouse of the decedent; (2) adult children of the decedent; (3) parents of the decedent; (4) adult siblings of the decedent; (5) adult grandchildren of the decedent; and (6) grandparents of the deceased). This result was affirmed by implication in Seals v. H&F, Inc., ____S.W.3d ____, No. M2009-00330-SC-R23-CQ, 2010 WL 152185 (Tenn. Jan. 15, 2010).