                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         JUL 31 2000
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    GWENDOLYN R. HRABOWSKIE;
    ANGELA SNOW; FAITH R. JONES;
    ARTHUR I. RADCLIFF; MABELENE
    RADCLIFF,

               Plaintiffs-Appellants,                   No. 99-7100
                                                  (D.C. No. 98-CV-379-S)
         and                                            (E.D. Okla.)

    ARTHURENE R. CRAIG;
    JOSHUA L. RADCLIFF,

               Plaintiffs,
    v.

    UNITED STATES OF AMERICA,

               Defendant-Appellee.


                             ORDER AND JUDGMENT         *




Before TACHA , PORFILIO , and EBEL , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiffs brought suit under the Federal Tort Claims Act, 28 U.S.C.

§§ 1346(b), 2671-2680 (FTCA), alleging that the United States was liable to them

for damages resulting from the negligence and outrageous conduct of the

Veteran’s Administration Medical Center (VA) in Muskogee, Oklahoma, in

connection with the death of their father, Arthur Radcliff. The district court

conducted a bench trial and found that the evidence did not establish that the VA

was negligent or that its conduct was extreme and outrageous.

      “We review de novo the district court’s legal conclusions under the FTCA.

The district court’s factual findings will be set aside, however, only if they are

clearly erroneous.”   Engle v. Mecke , 24 F.3d 133, 135 (10th Cir. 1994) (citation

omitted). “[A] finding is clearly erroneous when although there is evidence to

support it, the reviewing court on the entire evidence is left with the definite and

firm conviction that a mistake has been committed.”    Anderson v. City of

Bessemer City , 470 U.S. 564, 573 (1985) (quotations omitted). “If the district

court’s account of the evidence is plausible in light of the record viewed in its

entirety, [we] may not reverse . . . even though . . . [we] would have weighed the


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evidence differently. Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.”   Id. at 573-74.

Guided by these standards, we affirm.


                                         Facts

      Plaintiffs are children of Arthur Radcliff, a Black man who died at the VA

in Muskogee, Oklahoma on July 9, 1995. The funeral was to be held in Alabama,

and arrangements were made to have Sloan’s Funeral Home (Sloan’s) in Tulsa

pick up the body, embalm it, and ship it to the Alabama funeral home.

      Two days after Mr. Radcliff died, Donald Nelson, who was Caucasian,

also died at the VA in Muskogee. Mr. Nelson’s family arranged to have Sloan’s

pick up Mr. Nelson’s body from the VA for cremation. Sloan’s was to pick up

Mr. Nelson on July 11th, and Mr. Radcliff on July 12th. As a result, both men

were in the cooler room in the new morgue at the VA at the same time.

      A Sloan’s employee picked up what he believed was Mr. Nelson’s

body on July 11th, and a different employee picked up what he believed was

Mr. Radcliff’s body on the 12th. Consequently, both bodies were at Sloan’s for

a period of time. Sloan’s embalmed what they believed was Mr. Radcliff’s body

on the 12th. They could not cremate Mr. Nelson’s body until they received

a Death Certificate from the State Medical Examiner, and they cremated what

they believed was Mr. Nelson’s body on the 13th, after they received the Death

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Certificate. The Death Certificate stated Mr. Nelson’s race as Caucasian. Sloan’s

delivered what they believed was Mr. Radcliff’s body to the airport on July 14th,

for shipment to Alabama.

      Quite unfortunately, the body that was sent to Alabama was, in fact,

Mr. Nelson’s. When the body arrived at the Alabama funeral home, it was viewed

by plaintiffs, who were expecting to see their father. The body that was cremated

was Mr. Radcliff’s. Plaintiffs contend that this unfortunate error was the result of

the VA’s negligence in identifying and releasing their father’s body, failing to

adequately train their employees, and failing to institute proper procedures for the

placement of bodies in its new morgue. In addition, plaintiffs claim that the VA’s

actions resulted in negligent infliction of emotional distress and that the VA’s

conduct was extreme and outrageous and, thus, they are entitled to recover for

intentional infliction of emotional distress.


                                      Discussion

      Because the FTCA “makes the United States liable on tort claims under

those circumstances in which a private individual would be liable under state

law,” we apply “the law of the place where the alleged negligence occurred.”

Flynn v. United States , 902 F.2d 1524, 1527 (10th Cir. 1990). Oklahoma law

provides that “to establish a claim based on negligence, the plaintiff must

establish (a) the existence of a duty owed by defendant to plaintiff; (b) that the

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defendant failed to perform that duty; and (c) that the defendant’s failure caused

the plaintiff injury.”     Woolard v. JLG Indus., Inc. , 210 F.3d 1158, 1168 (10th Cir.

2000). “[A] proximate cause is defined as one that, in the natural and continuous

sequence, produces [the plaintiff’s] injury and without which the injury would not

have happened.”       Id. at 1172 (quotations omitted). If, however, “an unforeseeable

event intervenes between the breach of duty, and that event directly causes the

injury completely independent of the original breach, then the intervening cause

becomes the supervening cause and breaks the causal nexus between the initial

breach and the subsequent injury.”       Id. at 1181 (quotation omitted). When there

is a supervening cause, any original negligence becomes only a remote cause

or mere condition.       See Lefthand v. City of Okmulgee , 968 P.2d 1224, 1226

(Okla. 1998). “A true supervening cause acting to insulate [a] defendant from

liability must satisfy a three-prong test: (1) it must be independent of the original

act, (2) it must be adequate of itself to bring about the result, and (3) it must not

have been a reasonably foreseeable event.”         Id. Generally, whether a defendant’s

failure to perform a duty owed is the proximate cause of a plaintiff’s injury is

a question of fact.      See id. 1


1
       “[T]he question of proximate cause becomes a question of law when the
facts are undisputed and there is no evidence from which a [factfinder] could
reasonably find a causal connection between the allegedly negligent act and the
injury.” Lefthand , 968 P.2d at 1226. This exception to the general rule that
                                                                     (continued...)

                                             -5-
      After considering all the evidence, the district court found that the two

bodies were properly identified by toe tags and identification bracelets at the VA

and that the identifying tags remained on the bodies while they were at Sloan’s.

In fact, the toe tag identifying Mr. Nelson was still attached to his toe when he

was returned from Alabama. The court found that the VA employee who released

Mr. Nelson’s body, and the Sloan’s employee who took the body, both confirmed

Mr. Nelson’s identity according to the toe tag and/or the bracelet. It further found

that Sloan’s visually inspected the chest area of every body it cremated for the

presence of a pacemaker, and an inspection of Mr. Radcliff’s chest area would

have revealed that he was Black. The court concluded that Sloan’s erroneously

cremated Mr. Radcliff’s body contrary to the Death Certificate, which authorized

cremation of Mr. Nelson, a Caucasian. In sum, the district court found that the

VA was not negligent because it released the proper bodies to the respective

Sloan’s employees. All of these findings are perfectly plausible when the record

is viewed in its entirety, and, therefore there was no clear error.

      To the extent that the VA breached a duty to institute appropriate

procedures for the placement of bodies in the new morgue and properly train its

employees in the procedures to be used in the new morgue, the district court



1
 (...continued)
proximate cause is a factual question does not apply on this record.

                                          -6-
found that these failures by the VA were not the proximate cause of plaintiffs’

injuries. Instead, it found that the VA’s omissions were merely a condition that

made the cremation of Mr. Radcliff possible. Sloan’s cremation of Mr. Radcliff

without authorization and its delivery of Mr. Nelson to Alabama without verifying

his identity were independent, efficient, and unforeseeable acts and, as such,

amounted to a supervening cause that insulates the VA from any liability.      See id.

These findings are also permissible views of the evidence, and, as such, are not

clearly erroneous.

      Finally, the district court was correct in finding that defendant’s conduct

was neither extreme nor outrageous. Consequently, plaintiffs are not entitled to

recover on a theory of intentional infliction of emotional distress.

      AFFIRMED.

                                                       Entered for the Court


                                                       David Ebel
                                                       Circuit Judge




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