                  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



This appeal involves one of numerous civil lawsuits filed against T. Ray Brent Marsh and his former
business, Tri-State Crematory, Inc., and others. The plaintiffs in this case are the parents and siblings
of Robert H. Crawford, Jr., whose body was sent to the Tri-State Crematory for cremation. The
body, however, was not cremated and to this day the plaintiffs do not know what happened to their
loved ones’ body. The Trial Court dismissed the lawsuit after finding that the decedent’s surviving
spouse was the only person with standing to bring the various tort claims asserted by the plaintiffs.
The decedent’s sister, Teri Crawford, appeals that determination. We affirm.


                    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
                          Circuit Court Affirmed; Case Remanded


D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
joined. CHARLES D. SUSANO , JR., J., filed a separate opinion concurring in part and dissenting in part.


Teri Crawford, pro se Appellant.


John J. Britton and Chris W. McCarty, Knoxville, Tennessee, for the Appellee, J. Avery Bryan
Funeral Home.


Stuart F. James, Chattanooga, Tennessee, for the Appellees, T. Ray Brent Marsh, Rhames Lashae
Marsh, Tri-State Crematory, and Tri-State Crematory, Inc.
                                                    OPINION

                                                 I. Background

                This is the second occasion this Court has had to consider an appeal from the many
lawsuits arising from the actions of T. Ray Brent Marsh ("Marsh"), related to his operation of Tri-
State Crematory, Inc. ("Tri-State") located in Noble, Georgia. Marsh currently is serving a twelve-
year prison sentence in the State of Georgia for his actions.

                In Floyd v. Prime Succession of TN, No. E2006-01085-COA-R9-CV, 2007 WL
2297810 (Tenn. Ct. App. Aug. 13, 2007), no appl. perm. appeal filed, we discussed some of the
general background information giving rise to these various lawsuits.1 The lawsuit in Floyd was
filed by several relatives of Gail Lavan Floyd, who died in March of 2000. According to Floyd:

                          The relevant underlying facts and procedural history are
                  essentially undisputed. Gail Lavan Floyd died on March 21, 2000.
                  Buckner-Rush Funeral Home in Cleveland agreed to handle the
                  funeral arrangements and agreed to have Mrs. Floyd’s remains
                  cremated. Her body was to be cremated at Tri-State, located in
                  Noble, Georgia, a business that provided cremation services for
                  funeral homes in Tennessee, Georgia, and Alabama. Marsh had been
                  operating Tri-State since 1996.

                         This lawsuit was filed in July 2002. The plaintiffs sued
                  various defendants, including the funeral home, Tri-State, and Marsh.
                  According to the complaint,

                           [t]he [p]laintiffs placed the body of their loved one in the care
                           of ... [the funeral home] with the specific expectation that the
                           body would be handled in the manner and method described
                           and with appropriate care and dignity as had been represented
                           to them. The funeral was held and the body was placed in the
                           possession of the ... [funeral home] for cremation with the full
                           expectation and promise that their loved one’s’s [sic] remains
                           would be returned to them after it was properly cremated. On
                           or about April 4, 2000, the plaintiffs were advised that their
                           loved one’s’s [sic] remains were at the funeral home and they
                           could pick them up. This they did and received a black box
                           which was represented to them by representatives of the . . .
                           [funeral home] as being the remains of their loved one’s [sic]


         1
          The general background information is similar in all of the cases. The primary legal issue in Floyd involved
Marsh’s invocation of his Fifth Amendment privilege against self-incrimination.

                                                         -2-
                      and a copy of a death certificate that recites that cremation of
                      the body was performed at the defendant Tri-State
                      Crematory. . . .

                              On or about, February 25, 2002, the plaintiffs became
                      aware through the media that bodies had been discovered on
                      the grounds of the “Crematory” and that an investigation was
                      proceeding. Plaintiffs have taken the box that was given to
                      them by the ... [funeral home] and have been advised that the
                      contents are adulterated materials and that therefore it could
                      not be the remains of their loved one. To date, they have not
                      been advised by the . . . [funeral home], the “Crematory” or
                      the Georgia Bureau of Investigation where the body was
                      disposed of or the manner it was disposed of.

                              Plaintiffs have since discovered that Tri-State
                      Crematory was an [unlicensed] facility that was in a
                      substantial state of disrepair. . . . Instead of the bodies being
                      disposed of consistent with the “Cremation and Disposition
                      Authorization” attached as Exhibit B, bodies that were taken
                      to the “Crematory” were buried in pits or mass graves on the
                      property or placed in burial vaults or just dumped on the
                      ground.

Floyd, 2007 WL 2297810, at *1, 2 (footnote omitted)

               In Floyd, we also discussed what happened to Marsh as a result of his actions
described above. We noted that a Georgia grand jury returned 787 criminal indictments against
Marsh pertaining to the over 200 bodies that had been identified. The indictments did not cover the
roughly 110 bodies that were not or were unable to be identified. Id. at *2. Marsh eventually plead
guilty to numerous counts in Georgia. The plea agreement accepted by the Walker County Superior
Court provided as follows:

                       [The State of Georgia] would recommend in this case that the
               defendant be sentenced to serve twelve years in prison, that he shall
               also be given a concurrent term of probation of 75 years and that as
               a condition of probation that he pay a fine of 20 thousand dollars and
               that the payment of the fine commence within one year after his
               release from incarceration and that he pay the fine and attendant costs
               at the rate of one thousand dollars per year under the supervision of
               the probation officer and we would request that the defendant be
               directed to hand-write a letter of apology to be delivered to a
               designated representative for each of the identified remains in this


                                                -3-
               case. The letters would be turned over to the probation office for
               mailing to their ultimate destinations. We would ask the court to
               direct the defendant to write a general letter of apology. These would
               not be due until six months after the commencement of the sentence
               itself.

                       The defendant would pay restitution to the State of Georgia in
               the sum of eight million dollars in the event that the defendant shall
               either directly or indirectly attempt to profit or benefit in any manner
               from any transaction arising out of the sale of his story, so to speak,
               regarding these events.

                       The defendant shall be on unsupervised probation after the
               final payment of any and all fines and court costs and the sentence
               shall be concurrent with any other sentence he may receive in the
               State of Tennessee arising out of this and the period of incarceration
               shall begin sometime after January 1st of 2005.

Floyd, 2007 WL 2297810, at *3.

              Following Marsh’s guilty plea in Georgia, he pled guilty to numerous criminal
charges brought against him by the State of Tennessee. Marsh received a total sentence of nine years
in the Tennessee criminal cases. Floyd, 2007 WL 2297810, at *3. The nine-year sentence in
Tennessee was to be served concurrently with the twelve-year sentence in Georgia.

                                     II. The Present Lawsuit

                 Robert H. Crawford, Jr., (“the decedent”) died on February 26, 2001. At the time of
his death, the decedent was married to Beverly Crawford (“Wife”). Wife made funeral arrangements
with defendant J. Avery Bryan Funeral Home (the “Funeral Home”) in Chattanooga, Tennessee. A
contract for funeral services was entered into between Wife and the Funeral Home. In addition, Wife
signed a document titled “Authorization for Cremation and Disposition.” Among other things, this
document contained Wife’s authorization for the Funeral Home to release the decedent’s body to Tri-
State for cremation. These documents were signed only by Wife and a Funeral Home representative.

               The decedent’s body was transported to Tri-State Crematory for cremation. It is
unknown what happened to the decedent’s body after it arrived at Tri-State. The crematorium was
non-operational at that time even though Marsh continued to accept bodies for cremation. For
purposes of this appeal, we will assume that the decedent’s body was not cremated and that the
decedent’s remains are one of the unidentified bodies found on Tri-State’s premises, or that the
decedent’s body has yet to be found.




                                                 -4-
                The present lawsuit was filed by Robert H. Crawford, Sr., Betty Davis, Teri Crawford,
and Frank C. Crawford (“Plaintiffs”), the parents and siblings of the decedent. Wife is not a party
to this lawsuit. Plaintiffs sued Tri-State Crematory, Inc., T. Ray Brent Marsh, Tommy R. Marsh,
Clara C. Marsh, and Rhames L. Marsh, individually and doing business as Tri-State Crematory
and/or Marsh Vault & Grave Service.2 They also sued SCI Georgia Funeral Services, Inc., f/d/b/a
J. Avery Bryan Funeral Home, Inc. According to the complaint:

                           At all times material to this action . . . [Tri-State] was hired,
                  engaged and retained by J. Avery Bryan Funeral Home to effectuate,
                  as its agent, ostensible agent, servant, employee, representative, joint
                  venturer, and associate, the process of cremating the remains of
                  [Robert H. Crawford, Jr. . . .] At all material times, Defendants . . .
                  [were] acting within the course and scope of that authority and with
                  the knowledge, authorization, consent, permission or ratification of
                  each other. J. Avery Bryan owed a contractual duty to ensure that the
                  human remains entrusted to its care for cremation were cremated and
                  that the cremation was handled in accordance with all legal
                  obligations. J. Avery Bryan breached that duty, and thus is
                  vicariously liable for the actions of [Tri-State] . . . . All defendants
                  were charged to carry out Plaintiffs’ wishes fully, specifically, and
                  respectfully, and the intentional, willful, knowing and reckless acts of
                  Defendants Tri-State are imputed to J. Avery Bryan so as to make all
                  Defendants jointly and severally liable for compensatory and punitive
                  damages to Plaintiffs.

                 Plaintiffs raised numerous claims including claims for breach of contract, breach of
fiduciary duty, negligence, misrepresentation, negligent and intentional infliction of emotional
distress, intentional mishandling of a corpse, and fraud.

                                 III. The Georgia Class Action Lawsuit

                As one might expect, numerous lawsuits were filed in several states against Marsh,
Tri-State, and the funeral homes. The plaintiffs in one of the Georgia lawsuits sought class action
certification. On March 17, 2003, the United States District Court for the Northern District of
Georgia certified class action status. See In Re Tri-State Crematory Litigation, 215 F.R.D. 660 (N.D.
Ga. 2003). In addition to Marsh and Tri-State, one of the many defendants in the class action lawsuit
was J. Avery Bryan Funeral Home, Inc. Id. at 671. The claims asserted in the class action lawsuit
were: “breach of contract, breach of the covenant of good faith and fair dealing, breach of fiduciary
duty, fraudulent concealment, negligence, intentional mishandling of a corpse, intentional infliction


         2
            T. Ray Brent Marsh was the manager of Tri-State Crematory, Inc. With regard to that corporate entity,
Plaintiffs alleged that Rhames L. Marsh was the CEO, Clara Marsh was the CFO, and Tommy Marsh was the President
and registered agent. Plaintiffs also alleged that Tri-State Crematory, Inc., was administratively dissolved in 1997.

                                                        -5-
of emotional distress, negligent infliction of emotional distress, and unjust enrichment.” Id. at 675.
The Tri-State Court made numerous findings and conclusions in a very thorough opinion certifying
the class. We will set forth a few of these findings3:

                  [T]he Court concludes that the named Plaintiffs have standing to
                  bring claims on behalf of the class members for: (1) breach of
                  contract; (2) fraudulent conduct as to the Tri-State Defendants; (3)
                  negligence; (4) willful interference with remains and intentional
                  mishandling of a corpse; (5) negligent interference with remains and
                  mishandling of a corpse; and (6) intentional infliction of emotional
                  distress. The Court further concludes that the named Plaintiffs have
                  standing to sue all named Defendants, including both Funeral Home
                  Defendants and the Tri-State Defendants. (215 F.R.D. at 688)

                                                     * * *

                  The Court concludes that certain negligence issues are appropriate for
                  class treatment. Those issues include: (1) the nature and duration of
                  Defendant Tri-State’s alleged mishandling of human remains; (2) the
                  standard of care in the funeral industry - alleged to apply to
                  Defendants - for providing and supervising cremation services; (3)
                  the nature of Defendants’ alleged breach of that standard of care,
                  either by action or inaction; and (4) whether “uncertainty” is an
                  actionable injury. The Court therefore exercises its power under Rule
                  23(c)(4)(A) and Rule 23(b)(3) to certify those issues related to
                  Defendants’ duty of Plaintiffs and whether Defendants breached that
                  duty. (215 F.R.D. at 696, 697)

                                                     * * *

                  The Court . . . certifies a Plaintiff class defined as follows:

                  All those who are or were next of kin of any decedents delivered for
                  cremation to Defendant Tri-State Crematory from the years 1988 to
                  2002; all persons or entities who were parties to any contract with any
                  Defendant regarding funeral arrangements for a decedent who was
                  delivered for cremation to Defendant Tri-State Crematory from 1988
                  to 2002 whose claim is not barred by the applicable statute of
                  limitations; and a subclass defined as the next of kin of decedents
                  whose uncremated or otherwise desecrated remains have been



       3
           W e have added the pinpoint cites following each paragraph.

                                                        -6-
              recovered from the property of Defendant Tri-State Crematory or the
              property surrounding Defendant Tri-State. (215 F.R.D. at 701)

               A subclass which included the claimants whose deceased relatives were sent to Tri-
State from J. Avery Bryan Funeral Home eventually was created by the Tri-State Court. In June of
2004, an order was entered approving a proposed class settlement for all of claimants in this
particular subclass. That order provides, inter alia, as follows:

                     For the sole purpose of conducting the settlement approval
              process contemplated under Fed. R. Civ. P. 23(e), this Court
              designated a settlement subclass of the previously certified class, J.
              Avery Bryan Funeral Home, Inc. subclass defined as:

                      All those who are or were next of kin of any decedents
                      delivered to J. Avery Bryan Funeral Home, Inc. for cremation
                      and sent to Defendant Tri-State Crematory from January 1,
                      1988 to February 15, 2002; and

                      All person or entities who were parties to any contract with J.
                      Avery Bryan Funeral Home, Inc. for funeral arrangements for
                      any decedent who was delivered for cremation to Defendant
                      Tri-State Crematory from January 1, 1988 to February 15,
                      2002.

                                             * * *

                     Forms of “Notice of Class Action and Proposed Partial Class
              Action Settlement” were approved for dissemination, as specified in
              the approved Class Notice Plan, commencing April 19, 2004.
              Settlement Class members were allowed to exclude themselves from
              the Class (“opt out”) by submitting their exclusion requests, in the
              manner specified in the Class Action Notice, not later than the
              postmarked date of May 24, 2004.

                      This Court has conducted a Final Approval Hearing on June
              4, 2004, at the United States District Court for the Northern District
              of Georgia, in Rome, Georgia, to hear from the settling parties and
              any J. Avery Bryan Funeral Home, Inc. Settlement Subclass member
              who wished to be heard, and to determine whether the proposed
              settlement should be granted final approval.




                                                -7-
The Court then stated that the settlement was approved and the “Order and Judgment constitutes the
final approval of the J. Avery Bryan Funeral Home, Inc. settlement pursuant to the provisions of Fed.
R. Civ. P. 23(e).”

               Wife did not opt out of the Georgia class actions lawsuit and all of her claims were
settled upon entry of the above order.

                             IV. The Dismissal of the Present Case

                After Wife settled all of her claims in the Georgia class action lawsuit, the Funeral
Home filed a motion for summary judgment and the Marsh defendants and Tri-State filed a motion
to dismiss. The defendants maintained in these motions, among other things, that the present lawsuit
should be dismissed because Wife was the only person with standing to bring any of the claims at
issue. The defendants argued that because all of Wife’s claims had been settled, the present lawsuit
filed by the decedent’s parents and siblings must be dismissed for lack of standing. Attached to the
motion for summary judgment was an affidavit prepared by Wife prior to her settlement in the class
action lawsuit. In this affidavit Wife states as follows:

               1.      That Robert Howard Crawford, Jr. died on February 26, 2001;
                       AND

               2.      I was married to Robert Howard Crawford, Jr. at the time of
                       [his] death.

               3.      I have sole entitlement to the class action settlement benefits
                       derived from this Litigation in consideration of my release of
                       all claims related to the Tri-State Crematory incident against
                       the Released Persons as defined in the Settlement Agreement.

               4.      [I] understand that the J. Avery Bryan Settlement
                       Administrator and the Released Persons as identified in the
                       Settlement Agreement, together with its affiliates, is relying
                       upon this Affidavit as an inducement to recognize my interest
                       in the class action settlement.

               In consideration of recognizing my interest in the class action
               settlement, I hereby agree to release all claims against Released
               Persons identified in the Settlement Agreement and to indemnify and
               hold harmless the J. Avery Bryan Settlement Administrator and
               Released Persons identified in the Settlement Agreement, together
               with its affiliates, its officers and directors, agents and employees
               from any claims, losses, or damages arising out of this claim of



                                                 -8-
                  authority, including, but not limited to, any liability for State of
                  Federal taxes, fees, and penalties.

               The Trial Court granted the motions and dismissed the entire lawsuit against all of
the defendants.4 According to the Trial Court:

                           The facts central to the consideration of this motion are not
                  complex. The Plaintiffs are the father, the mother, the sister and
                  brother of Robert H. Crawford, Jr., who died on February 26, 2001,
                  and whose remains were delivered to Tri-State Crematory for
                  cremation. The Plaintiffs allege that what was returned to them were
                  not the cremains of their brother and son. The widow of Robert H.
                  Crawford, Jr., Beverly Crawford Henson, made a claim in the class
                  action settlement and executed a release in favor of J. Avery Bryan.
                  In Re: Tri-State Crematory Litigation, MDL Docket No. 1467 (N.D.
                  Ga.). The issue at the core of this motion for summary judgment is
                  whether the Plaintiffs in this lawsuit have standing to maintain a
                  claim against these Defendants. The case most in point in this state
                  is Hill v. Traveler’s Insurance Co., 294 S.W. 1097 (Tenn. 1927). The
                  action against Traveler’s was for mutilation of the body of the
                  Plaintiff’s deceased husband. That case is analogous to this one in
                  that this case involves mutilation of a body. In that case, the Supreme
                  Court held that the right to possession of a dead body for the purpose
                  of burial is vested in the surviving spouse. In Hill, the Supreme Court
                  relied upon the Minnesota decision of Larson v. Chase, 50 N.W. 238
                  (Minn. 1891), which did state that the right of a surviving spouse was
                  paramount to that of the next of kin. The cases involving right to
                  control burial provide that the surviving spouse has the superior
                  right.…

              The Trial Court then dismissed all of the Plaintiffs’ claims. The decedent’s sister,
Teri Crawford, proceeding pro se, appeals the Trial Court’s dismissal of her lawsuit.

                                                  V. Discussion

               In Teter v. Republic Parking System, Inc., 181 S.W.3d 330 (Tenn. 2005), our Supreme
Court recently reiterated the standards applicable when appellate courts are reviewing a motion for
summary judgment. The Court stated:



         4
           Although Tri-State and the M arsh defendants filed a motion to dismiss, the Trial Court correctly treated the
motion as if it were a motion for summary judgment because matters outside the pleadings were considered when ruling
on that motion. See Tenn. R. Civ. P. 12.02.

                                                          -9-
                       The purpose of summary judgment is to resolve controlling
               issues of law rather than to find facts or resolve disputed issues of
               fact. Bellamy v. Fed. Express Corp., 749 S.W.2d 31, 33 (Tenn.
               1988). Summary judgment is appropriate only when the moving
               party demonstrates that there are no genuine issues of material fact
               and that he or she is entitled to judgment as a matter of law. See
               Tenn. R. Civ. P. 56.04; Penley v. Honda Motor Co., 31 S.W.3d 181,
               183 (Tenn. 2000); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993).
               In reviewing the record, the appellate court must view all the
               evidence in the light most favorable to the non-moving party and
               draw all reasonable inferences in favor of the non-moving party.
               Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). And
               because this inquiry involves a question of law only, the standard of
               review is de novo with no presumption of correctness attached to the
               trial court's conclusions. See Mooney v. Sneed, 30 S.W.3d 304, 306
               (Tenn. 2000); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Teter, 181 S.W.3d at 337.

                In Hill v. Travelers’ Ins. Co., 294 S.W. 1097 (Tenn. 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:

                               “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


                                                -10-
                       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.

Hill, 294 S.W. at 1098-99.

                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.”).

                The result in Hill is consistent with the Restatement (Second) of Torts, § 868. This
section of the Restatement (Second) provides as follows:




                                                 -11-
           § 868. Interference With Dead Bodies

           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)

           Some of the comments to section 868 are also instructive. The pertinent comments
provide:

           Comment: a. One who is entitled to the disposition of the body of a
           deceased person has a cause of action in tort against one who
           intentionally, recklessly or negligently mistreats or improperly deals
           with the body, or prevents its proper burial or cremation. The
           technical basis of the cause of action is the interference with the
           exclusive right of control of the body, which frequently has been
           called by the courts a “property” or a “quasi-property” right. This
           does not, however, fit very well into the category of property, since
           the body ordinarily cannot be sold or transferred, has no utility and
           can be used only for the one purpose of interment or cremation. In
           practice the technical right has served as a mere peg upon which to
           hang damages for the mental distress inflicted upon the survivor; and
           in reality the cause of action has been exclusively one for the mental
           distress. The rule stated in this Section has thus a great deal in
           common with the rules stated in §§ 46, 312 and 313. There is no
           need to show physical consequences of the mental distress.

                   b. It is not within the scope of this Restatement to attempt to
           state who is entitled to the disposition of a dead body. The matter is
           governed by the statutes or common law rules of the various
           jurisdictions, to which reference must be made. Normally the right
           of disposition is in the surviving spouse, if any; or if none, then in the
           next of kin in order of succession.…

                                           * * *


                   d. The rule stated in this Section applies not only to an
           intentional interference with the body itself or with its proper burial
           or cremation, but also to an interference that is reckless or merely
           negligent.…



                                             -12-
                                              * * *

                       g. The decisions in which recovery has been allowed for
               interference with a dead body have thus far been those in which the
               plaintiff has been the person entitled to disposition of the body or one
               of a group, such as children of the deceased, who have equal right of
               disposition. In the absence of decisions, the Institute expresses no
               opinion on whether one who is not entitled to the disposition may not,
               under some circumstances, have a cause of action for his own mental
               distress under the principle stated in this Section. 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. The
               outrageous mistreatment of a dead body in the presence of surviving
               relatives would appear to be a proper case for liability under that
               Section. But even when the conduct of the defendant is merely
               negligent, it is difficult to conclude that a widow who has the
               technical right of disposition of the body but is not present on the
               scene should be entitled to recover, while a daughter who is present,
               but has no such right should not.

Restatement (Second) of Torts § 868, cmts. a, b, d & g (1979).

               Several jurisdictions have either followed the Restatement (Second) of Torts § 868,
or have reached the same result based on that particular jurisdictions’s law. For example, in Perry
v. Saint Francis Hospital and Medical Center, Inc., 865 F. Supp. 724 (D. Kan. 1994), the Court
observed that:

                       Generally, the person who has the right to possess and bury
               the body is the only proper party to sue and recover for the
               interference with that right. Steagall v. Doctors Hospital, 171 F.2d
               352, 353 (D.C. Cir. 1948); Burns v. Anchorage Funeral Chapel, 495
               P.2d 70, 73 (Alaska 1972); O'Dea v. Mitchell, 350 Mass. 163, 213
               N.E.2d 870, 872 (Mass. 1966); Dumouchelle v. Duke University, 69
               N.C. App. 471, 317 S.E.2d 100, 103 (N.C. Ct. App. 1984); Whitehair
               v. Highland Memory Gardens, Inc., 174 W.Va. 458, 327 S.E.2d 438,
               443 (W.Va.1985); Restatement of Torts (Second) § 868 cmts. a, b
               (1977); 22A Am.Jur.2d Dead Bodies § 137 (1988); 25A C.J.S. Dead
               Bodies § 9 at pp. 520-21 (1966); James O. Pearson, Jr., Annotation,
               Liability for Wrongful Autopsy, 18 A.L.R. 4th 858, 865 (1982). This
               right typically belongs to the surviving spouse and, if none, then
               passes to the next of kin in the order of relation. Steagall, 171 F.2d



                                                -13-
                  at 353; Burns, 495 P.2d at 73; Whitehair, 327 S.E.2d at 443; Annot.
                  18 A.L.R.4th at 865.

                         There is nothing in its case law to suggest that Kansas courts
                  would depart from these general standing rules.…

Perry, 865 F. Supp. at 726.

                Other jurisdictions which have either adopted the Restatement (Second) of Torts
§ 868 or which have reached the same result under state statutory law include, but are not limited
to: Tomasits v. Cochise Memory Gardens, Inc., 721 P.2d 1166 (Az. App. 1986) (adopting
Restatement (Second) of Torts § 868 and affirming $25,000 punitive damage award to the plaintiff
for wrongful disinterment of the plaintiff’s deceased parents); Andrews v. McGowan, 739 So. 2d 132
(Fla. App. 1999) (dismissing claims for tortious interference with lawful rights of burial, conversion,
fraud, negligence, and intentional infliction of emotional distress brought by the decedent’s children
after finding that the decedent’s husband “was the legally authorized person to direct the disposition
of the decedent’s remains” and the funeral home was not liable in tort to the decedent’s children as
a matter of law); Walser v. Resthaven Memorial Gardens, Inc., 633 A.2d 466, 475 (Md. App.
1993)(“As we have already explained, the class of persons protected by the principle enunciated in
Restatement § 868 is limited to those ‘entitled to the disposition of the body,’ and, while facially,
[the decedent’s mother] might fall within that class [because the decedent was not married at the
time of death], her children would not also be within it. So long as [the decedent’s mother] was
alive, she alone formed the protected class. We therefore affirm the judgments entered against [the
decedent’s] siblings.…”; Whaley v. County of Saginaw, 941 F. Supp. 1483 (E.D. Mich 1996)
(dismissing state law claims for mutilation of a body brought by the decedent’s siblings because
under Michigan law, the parents have a superior right to disposition of a body over siblings5);
Amaker v. King County, 479 F. Supp.2d 1159 (W.D. Wash 2007) (under Washington law, the
decedent’s sister did not have standing to bring a claim for tortious interference with a dead body
when, at the time of death, the decedent’s father had the right to control disposition of the body).

                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.6 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



         5
          The Court also noted that a surviving spouse has superior rights over the parents. Id. at 1490. Apparently
the decedent in Whaley was not married.

         6
           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.

                                                         -14-
of the decedent’s body, she alone had the right to bring the various tort claims against the Funeral
Home and Tri-State.7 These claims were properly dismissed for lack of standing.

                There are two final points worth emphasizing. First, section 868, by definition, only
applies to cases involving conduct committed upon dead bodies. It necessarily follows that any
limitation imposed by section 868 does not apply to tortious conduct committed upon live persons,
such as that addressed by our Supreme Court in Doe v. Roman Catholic Diocese of Nashville, 154
S.W.3d 22 (Tenn. 2005). Second, we are not holding that someone who does not have control over
disposition of a decedent’s body never can bring a tort claim for emotional distress and the like. For
example, if the body was mutilated in the presence of a family member, then our holding in this case
would not prevent that family member from filing a lawsuit, even if that family member did not have
control over the body’s disposition. See comment g to the Restatement (Second) of Torts, § 868,
supra.

                Teri Crawford has set forth numerous issues in this appeal. However, our conclusion
that she did not have standing to bring the present lawsuit necessarily renders all of the other various
issues moot except one, which is her claim that the Trial Court erred when it taxed costs to the
plaintiffs. Although the plaintiffs certainly are not the “bad actors” in this case and we fully
understand their frustration, we simply cannot conclude that the Trial Court abused its discretion
when it taxed costs to the unsuccessful parties.

                                                 VI. Conclusion

                The judgment of the Trial Court is affirmed and this cause is remanded to the Trial
Court for collection of the costs below. Costs on appeal are taxed to the Appellant, Teri Crawford,
and her surety, if any.




                                                                ___________________________________
                                                                D. MICHAEL SWINEY, JUDGE




         7
           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., No. E2006-01513-COA-R3-CV, filed contemporaneously
with this Opinion.

                                                         -15-
