Appeal from the Circuit Court of Cook County; the Hon. Alan E.
Morrill, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This is a permissive interlocutory appeal pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308). The question presented for our review is whether Illinois recognizes a cause of action "for emotional distress arising from the negligent mishandling of a corpse."
Plaintiff's action against defendant alleged that it was negligent in failing to preserve the body of her deceased husband in a condition suitable for an open casket wake and funeral following his death. The body decomposed when the refrigeration unit in the hospital morgue malfunctioned. Plaintiff has acknowledged that she is seeking damages solely for "emotional anguish" which did not result in physical injury or illness. The circuit court denied defendant's motion to dismiss the complaint for failure to state a cause of action and subsequently made the finding necessary for discretionary review under Supreme Court Rule 308 (87 Ill.2d R. 308). The question of law identified by the court is whether Illinois recognizes a cause of action for "emotional distress arising from the negligent mishandling of a corpse."
In Mensinger v. O'Hara (1914), 189 Ill. App. 48, plaintiff, the husband of the deceased, sued defendants, two undertakers and their assistant, to recover damages for mental suffering allegedly caused when defendants, without plaintiff's knowledge or consent, cut off and removed the hair from the head of the deceased, thereby rendering her body unfit to be viewed prior to burial. The circuit court dismissed the complaint and plaintiff appealed.
On review, the court observed that although a dead body is not considered as property, "the law does recognize a right * * * arising out of the duty of the nearest relatives of the deceased to bury their dead, which authorizes and requires them to take possession and control of the dead body for the purpose of giving it a decent burial." (Mensinger v. O'Hara (1914), 189 Ill. App. 48, 53-54. See also Leno v. St. Joseph Hospital (1973), 55 Ill.2d 114, 117, 302 N.E.2d 58.) "This right," the court continued, "is an exclusive right to the custody and possession of the remains, and in the absence of any testamentary disposition, belongs to the surviving husband or wife, if any, or if there be none, then to the next of kin." (Mensinger v. O'Hara (1914), 189 Ill. App. 48, 54.) The court held that "any wilful or wanton infringement of this recognized legal right, by the intentional mutilation of the body of the deceased, will subject the wrongdoer to an action on the case for damages, and * * * in such action damages will be allowed for any mental suffering proximately resulting from the wrongful act, even though no actual pecuniary loss be alleged or proved." (189 Ill. App. 48, 54. Accord, Palenzke v. Bruning (1900), 98 Ill. App. 644.) Construing the averments in the complaint as having alleged an intentional act, the court in Mensinger found that plaintiff had stated a cause of action, reversed the order of dismissal and remanded for further proceedings. The court expressly declined to decide whether recovery may be had for mental suffering alone, in the absence of any allegation or proof of wilful or wanton misconduct. Mensinger v. O'Hara (1914), 189 Ill. App. 48, 54-57.
Our research has not disclosed any Illinois case in which a cause of action for mental distress caused by the negligent mishandling of a corpse has been recognized. "Courts generally have been reluctant to allow recovery for purely mental or emotional distress." (Rickey v. Chicago Transit Authority (1983), 98 Ill.2d 546, 555, 457 N.E.2d 1.) According to Rickey, "courts have given as reasons for this reluctance apprehensions that the door would be opened for fraudulent claims, that damages would be difficult to ascertain and measure, that emotional injuries are hardly foreseeable and that frivolous litigation would be encouraged." (98 Ill.2d 546, 555, 457 N.E.2d 1.) However, we seriously question whether these apprehensions are well founded where the mishandling of a corpse is concerned.
In their treatise on the law of torts, Prosser and Keeton note that although "the traditional rule has denied recovery for mere negligence [in the handling of corpses], without circumstances of aggravation, * * * [t]here are by now * * * a series of cases allowing recovery for negligent embalming, negligent shipment, running over the body, and the like, without such circumstances of aggravation." (W. Prosser & W. Keeton, Torts, at 362 (5th ed. 1984).) *fn1 This also represents the position taken in the Restatement (Second) of Torts. *fn2 "What all of these cases appear to have in common," Prosser and Keeton explain, is "an especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious." W. Prosser & W. Keeton, Torts, at 362 (5th ed. 1984).
In view of the "special circumstances" to which Prosser and Keeton refer, we do not believe that recognizing a cause of action for the negligent mishandling of a corpse would open the door for fraudulent claims or encourage frivolous litigation. Moreover, the emotional injuries caused thereby are "highly foreseeable." (Allen v. Jones (1980), 104 Cal.App.3d 207, 214, 163 Cal.Rptr. 445, 450.) Furthermore, although damages for emotional distress may be difficult to ascertain and measure, we note that in recognizing a cause of action for the intentional infliction of mental distress, our supreme court, in Knierim v. Izzo (1961), 22 Ill.2d 73, 174 N.E.2d 157, observed that "[i]t is equally difficult * * * to compute the money value of pain and suffering for which damages are allowed by juries each day in personal injury actions, and mental suffering has been recognized in this State as an element of compensable damage in actions for defamation [citations], for malicious prosecution in aggravated cases [citation], and for assault [citation]." 22 Ill.2d 73, 84, 174 N.E.2d 157.
Were we writing on a clean slate, we would be inclined to permit the complaint in this case to stand. However, we believe that recognition of plaintiff's cause of action is foreclosed by our supreme court's decision in Rickey v. Chicago Transit Authority (1983), 98 Ill.2d 546, 457 N.E.2d 1.
In Rickey, the eight-year-old plaintiff sought damages for the emotional distress he suffered as a result of witnessing his younger brother's near strangulation by an article of clothing which became entangled in the defendant's escalator. In reviewing this claim, the supreme court noted that in Illinois "recovery for negligently caused emotional distress suffered by the direct victim or by a bystander who witnesses the injury of another has been consistently denied unless it was accompanied by a contemporaneous physical injury to or impact on the plaintiff." (Rickey v. Chicago Transit Authority (1983), 98 Ill.2d 546, 550, 457 N.E.2d 1.) The court stated further that "[t]he underlying question is * * * whether any person who suffers emotional distress can recover, but the question here specifically is whether a bystander at the injury of another who, generally under the decisions, is a close relative of the bystander can recover." 98 Ill.2d 546, 553, 475 N.E.2d 1.
In Rickey, the court recognized a limited exception to the "impact rule" wherein "a bystander who is in a zone of physical danger and who, because of the defendant's negligence, has reasonable fear for his own safety is given a right of action for physical injury or illness resulting from emotional distress." (Rickey v. Chicago Transit Authority (1983), 98 Ill.2d 546, 555, 457 N.E.2d 1.) Plaintiff concedes that she was not within a "zone of physical danger" causing her to fear for her own safety and that she did not suffer physical injury or illness as a result of her emotional distress upon learning that her husband's body had decomposed and could not be viewed. Nevertheless, plaintiff contends that Rickey does not bar her action because the "zone of physical danger" test cannot and should not be applied to the facts of this case, she was the direct victim of defendant's alleged negligence, not a bystander, and the injury she sustained (emotional distress) was foreseeable. We disagree.
• 1 Initially, we note that the "zone of physical danger" test adopted in Rickey represents an exception to the "impact rule." This exception has been strictly construed. (Siemieniec v. Lutheran General Hospital (1985), 134 Ill. App.3d 823, 830-31, 480 N.E.2d 1227, appeal allowed (1985), 108 Ill.2d 589 (negligent infliction of emotional distress claim in wrongful-birth action rejected where plaintiffs, parents of a hemophiliac child, could not satisfy the Rickey requirement that they were in a zone of physical danger and had reasonable fear for their own safety); Maere v. Churchill (1983), 116 Ill. App.3d 939, 944-45, 452 N.E.2d 694 (Rickey exception to the "impact rule" was not broad enough to permit recovery for the emotional distress allegedly caused by the negligence of defendants in performing legal services for the plaintiffs).) Indeed, trial courts have been cautioned to limit claims of negligent infliction of emotional distress to those that closely adhere to the rule enunciated in Rickey. (See Lewis v. Westinghouse Electric Corp. (1985), 139 Ill. App.3d 634, 637, 487 N.E.2d 1071.) Two recent decisions illustrate this limitation.
In Gihring v. Butcher (1985), 138 Ill. App.3d 976, 487 N.E.2d 75, the plaintiff found her husband, who had committed suicide, dead in their garage. In her action for negligent infliction of emotional distress, plaintiff claimed that her husband's suicide was the result of medical ...