                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    August 13, 2007 Session

   ROBERT H. CRAWFORD, SR. ET AL. v. J. AVERY BRYAN FUNERAL
                    HOME, INC. ET AL.

                      Appeal from the Circuit Court for Hamilton County
                          No. 03C349     W. Neil Thomas, III, Judge



                  No. E2006-00987-COA-R3-CV                Filed November 21, 2007




Charles D. Susano, Jr., J., concurring in part and dissenting in part.

         The defendants’ filings in this case clearly establish that Teri Crawford does not have a cause
of action for intentional interference with the dead body of her brother, Robert H. Crawford. That
cause of action belonged to Mr. Crawford’s widow, to the exclusion of all others. Furthermore, in
my opinion, the record before us negates Ms. Crawford’s alleged causes of action against all
defendants except those asserted against the individuals and entities directly associated with the
operation of the Tri-State Crematory (hereinafter sometimes referred to as “the Tri-State
Defendants”). As to these latter individuals and entities, I believe the defendants’ filings fail to
negate Ms. Crawford’s three causes of action for (1) intentional, (2) reckless, and (3) negligent
infliction of mental distress. Therefore, I disagree with the majority’s conclusion that the trial court
was correct in dismissing Ms. Crawford’s complaint with respect to these “infliction of mental
distress” theories.

        As particularly pertinent to my separate opinion, the complaint contains the following
allegations:

                                               *   *   *

               1. This action arises from the mishandling, abuse and desecration of
               the bodies of the deceased loved ones of hundreds of citizens of
               Tennessee, Georgia, Alabama and other states. . . .

                                               *   *   *
5. . . . [Teri] Crawford is the surviving sister of Robert H. Crawford,
Jr. [, one of the decedents whose remains were to be cremated by Tri-
State Crematory]. . . .

                               *   *     *

11. . . . [Ray Marsh, Clara Marsh, T. Ray Brent Marsh and Rhames
LeShea March –] the Marsh Defendants [–] conducted business
without corporate protection, but as partners, joint venturers and joint
proprietors doing business as Tri-State Crematory, Tri-State
Crematory, Inc. and/or Marsh Vault & Grave, Inc., and/or Brent’s
Tents, all of which were not valid corporate entities subsequent to the
respective revocations of corporate charters by the State of Georgia
as hereinabove set forth, but were merely trade names, fictitious
names, or trade styles under which the Marsh Defendants jointly and
collectively owned and operated the Tri-State Crematory facility in
Noble, Georgia. The Marsh Defendants and Defendant Tri-State
Crematory will hereinafter be collectively referred to as [the Tri-State
Defendants].

                               *   *     *

26. Beginning at a date presently unknown, and continuing through
February 15, 2002, [the Tri-State Defendants] systematically and
commonly mishandled, desecrated, abused and commingled the
remains of the decedents in a manner offensive to human sensibilities
and/or expressly prohibited by law.

27. [The funeral home] returned what it represented to be the remains
of their loved ones to Plaintiffs.

28. The remains returned were not the true remains of Plaintiffs’
loved ones or where [sic] not properly cremated remains in
conformity to the lawful and professional standard of care for final
disposition of human remains, or there remains uncertainty whether
the deceased loved on[es were] ever actually cremated.

29. In light of this knowledge, Plaintiffs now know that their loved
ones’ remains were not cremated in accordance with the wishes of
Plaintiffs’ or under the terms of the agreement with [the funeral
home] but instead were subjected to [the Tri-State Defendants’]
unlawful and improper practices.



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30. Plaintiffs have all suffered and continue to suffer the predictable
and reasonably foreseeable emotional distress including anguish and
grief, upon learning of the treatment to which the remains of their
loved-ones were subjected by [the Tri-State Defendants and other
defendants].

                               *   *     *

33. Throughout [the relevant time period], [the Tri-State Defendants]
systematically and commonly mishandled, desecrated, abused, and
commingled the remains of the decedents in a manner offensive to
human sensibilities and/or expressly prohibited by law.

                               *   *     *

                   EIGHTH CAUSE OF ACTION

  INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

77. Plaintiffs re-allege and incorporate herein, as if set forth in full,
each and every allegation contained in the preceding paragraphs and
further allege:

78. The . . . conduct [of the Tri-State Defendants and other
defendants] directed toward Plaintiffs, as described herein, was
intentional, knowing, and/or reckless. It is so outrageous that it is not
tolerated by civilized society.

79. As a direct and proximate result of the . . . conduct [of the Tri-
State Defendants and other defendants], Plaintiffs suffered serious
mental injuries and emotional distress that no reasonable person could
be expected to endure or adequately cope with.

80. In their conduct, the [Tri-State Defendants and other defendants]
acted intentionally, knowingly, with suppression, fraud and malice
and in reckless and conscious disregard of Plaintiffs’ rights. Plaintiffs
are, therefore, entitled to punitive and exemplary damages from . . .
the [Tri-State Defendants and other defendants] in such amount as
shall be necessary and appropriate to punish the [Tri-State Defendants
and other defendants] and to deter them and anyone else from ever
committing similar indecencies upon human remains.

                    NINTH CAUSE OF ACTION


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                        NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

                   81. Plaintiffs re-allege and incorporate herein, as if set forth in full,
                   each and every allegation contained in the preceding paragraphs and
                   further allege:

                   82. At all material times, the [Tri-State Defendants and other
                   defendants] owed a duty to Plaintiffs to act with the ordinary care of
                   a reasonable person with respect to all aspects of the services
                   promised including, but not limited to, all phases of the cremation
                   process, including but not limited to the hiring, retention, training and
                   supervision of all agents, employees and representatives of the [Tri-
                   State Defendants and other defendants], in connection with such
                   services and transactions, the management and administration of the
                   services and transaction, the association with other persons and
                   entities to accomplish the performance of such services, the
                   individual, proper and respectful performance of all steps of the
                   cremation process, and the ascertainment that all such services were
                   being fully and properly undertaken and performed.

                   83. The [Tri-State Defendants and other defendants] negligently and
                   carelessly failed to discharge these duties.

                   84. As a proximate cause of the . . . negligence [of the Tri-State
                   Defendants and other defendants], Plaintiffs have suffered serious and
                   severe mental injuries and emotional distress that no reasonable
                   person could be expected to endure or adequately cope with.

                                                        *    *    *

(Capitalization and underlining in original). As I understand these allegations, the causes of action
being asserted are not premised upon “the interference with a dead body” concept contained in
Restatement (Second) of Torts § 868 (1965)1 and the old case of Hill v. Travelers’ Ins. Co., 294
S.W. 1097 (Tenn. 1927), but rather upon the concept of outrageous conduct found in Restatement




        1
            Comment g. to § 868 recognizes that § 46 may have some applicability to cases involving the abuse of a dead
body:

                   Under the rule stated in § 46 one who by extreme and outrageous conduct
                   intentionally or recklessly inflicts severe emotional distress upon another is subject
                   to liability for the emotional distress.

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(Second) of Torts § 46 and other sections of the Restatement (Second) of Torts.2 Stated another way,
the “right” in “outrageous conduct” cases is the right to be free from the infliction of serious
emotional distress, see Restatement (Second) of Torts § 46, cmt. b., as opposed to the surviving
spouse’s right to be free from interference with her exclusive control of the deceased’s body. See
Restatement (Second) of Torts § 868, cmt. a.

         The concept of outrageous conduct was addressed in the relatively recent case of Doe v.
Roman Catholic Diocese of Nashville, 154 S.W.3d 22 (Tenn. 2005). In Doe, victims of child
molestation by a former priest brought suit against the Catholic diocese of which the priest
previously had been a member. Id. at 24, 28. The plaintiffs alleged that the diocese had been guilty
of reckless conduct in the nature of outrageous acts and omissions that ultimately inflicted emotional
harm on the plaintiffs. Id. at 30. The trial court granted the diocese summary judgment and the
Court of Appeals affirmed. Id. In our opinion, we held “that reckless infliction of emotional distress
must be based on conduct that was directed at the plaintiff.” Id. at 24. The Supreme Court disagreed
with our conclusion. It granted permission to appeal and reversed the lower courts. The High Court
stated that Doe presented a question of first impression. The Court held that “a claim for reckless
infliction of emotional distress need not be based upon conduct that was directed at a specific person
or that occurred in the presence of the plaintiff.” Id. at 43. As in Doe, the Tri-State Defendants had
no direct contact or relationship with Terry Crawford and the alleged outrageous conduct did not
occur in her presence.

         In the course of its opinion, the Supreme Court in Doe stated the requirements for reckless
infliction of emotional distress:

                  Three elements are required: first, the conduct complained of must
                  have been reckless; second, the conduct must have been so
                  outrageous that it is not tolerated by civilized society; third, the
                  conduct complained of must have caused serious mental injury. In
                  order to mount a prima facie case, the plaintiff need not allege that the
                  defendant’s reckless misconduct has been directed at a specific
                  person or that it had occurred in the plaintiff’s presence.

Id. at 41 (citation omitted). The Court in Doe defined the concept of recklessness thusly:

                  Recklessness is a hybrid concept which resembles both negligence
                  and intent, yet which is distinct from both and can be reduced to
                  neither. “A person acts intentionally when it is the person’s
                  conscious objective or desire to engage in the conduct or cause the
                  result.” Although the reckless actor intends to act or not to act, the
                  reckless actor lacks the “conscious objective or desire” to engage in
                  harmful conduct or to cause a harmful result. (“[R]ecklessness and


       2
           See Restatement (Second) of Torts §§ 312, 313, 436, and 436A.

                                                       -5-
                negligence are incompatible with desire or intention.”); (The reckless
                actor “does not intentionally harm another, but he intentionally or
                consciously runs a very serious risk with no good reason to do so.”).
                Nevertheless, recklessness contains an awareness component similar
                to intentional conduct which is not demanded of negligence.
                (Recklessness “entails a mental element that is not necessarily
                required to establish gross negligence.”); (“The element of awareness
                of risk . . . does distinguish between recklessness and negligence.”).
                Further, although recklessness is typically a criterion for determining
                whether punitive damages are warranted in negligence cases, claims
                for reckless infliction of emotional distress lack an underlying
                negligence claim. Therefore, a recklessness analysis is something
                unique which differs from analyses based strictly on either intent or
                negligence. Courts requiring the directed-at element generally have
                failed to recognize and to address the unique qualities of recklessness.

Id. at 38. (citations omitted). In my opinion, the concepts embodied in these two quotes from Doe
fit the instant case like a glove.

        Based upon the foregoing, I would hold that Teri Crawford has stated in her complaint a
cause of action against the Tri-State individuals and entities for reckless infliction of emotional
distress. I would also hold that the complaint before us is sufficient to state a cause of action against
the same defendants for intentional infliction of the same condition. Finally, I believe the plaintiff
has sufficiently alleged a cause of action for negligent infliction of emotional distress. I express no
opinion as to whether Ms. Crawford can prove the essential elements of any or all of her alleged
causes of action.

        Accordingly, I concur in part and respectfully dissent in part.



                                                        _______________________________
                                                        CHARLES D. SUSANO, JR., JUDGE




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