                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                September 21, 2011 Session

    KRISTIE JACKSON v. WILLIAMSON & SONS FUNERAL HOME,
                            ET AL.

                  Appeal from the Circuit Court for Hamilton County
                    No. 09C586 W. Jeffrey Hollingsworth, Judge




              No. E2010-02489-COA-R3-CV-FILED-OCTOBER 12, 2011




In this negligence case, Kristie Jackson sued Williamson & Sons Funeral Home (the “Funeral
Home”) for negligence and negligent infliction of emotional distress following the burial of
her mother, Edna Louise Lewis. Ms. Jackson alleged that the Funeral Home was negligent
in failing to delay the burial after learning that she objected to the arrangements that had been
made and that the Funeral Home’s actions caused her emotional distress. The Funeral Home
moved for summary judgment, and the trial court granted the motion, finding that the Funeral
Home had affirmatively negated an essential element of Ms. Jackson’s claim by showing that
it did not owe a duty to her under the circumstances of the case. Ms. Jackson appeals. We
affirm the decision of the trial court.

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

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which C HARLES D. S USANO,
J R., and D. M ICHAEL S WINEY, JJ., joined.

Charles G. Wright (on appeal) and Crystal R. Freiburg (at trial), Chattanooga, Tennessee, for
the appellant, Kristie Jackson.

Paul R. Leitner and Benjamin T. Reese, Chattanooga, Tennessee, for the appellees,
Williamson & Sons Funeral Home, Carriage Funeral Holdings, Inc., and Thomas E. Wilson.
                                          OPINION

                                     I. BACKGROUND

       Ms. Lewis died without a will or a surviving spouse but was survived by three
children, Ms. Jackson, Alvin Burkhart, and Scott Sharp. Ms. Jackson was the eldest of the
three children. The day after Ms. Lewis died, Mr. Burkhart made arrangements with the
Funeral Home to bury Ms. Lewis at Granny Walker Cemetery. When Mr. Burkhart contacted
Ms. Jackson to inform her of the arrangements, she protested, stating that Ms. Lewis wanted
to be buried at Greenwood Cemetery, and informed him that she would not contribute
financially if he proceeded against their mother’s wishes. Mr. Burkhart told her that the
Funeral Home had pushed him into making the arrangements and that he would not change
anything because the longer they delayed the burial, the more money it would cost. Ms.
Jackson called the Funeral Home and spoke with the funeral director, Thomas Wilson, who
told her that she should speak with Mr. Burkhart. Ms. Jackson asked Mr. Wilson to postpone
the funeral until the disagreement could be resolved, but he refused, stating that the Funeral
Home had a contract with Mr. Burkhart and would proceed according to that contract. The
funeral was held the next day with Ms. Jackson in attendance.

       Ms. Jackson filed suit, asserting that the Funeral Home was negligent in providing
funeral services for her mother because it failed to ensure that the proper party had given
them permission to provide the funeral service and because it failed to delay the services until
the disagreement between the next of kin could be resolved. Ms. Jackson also asserted that
the Funeral Home’s negligence caused her emotional distress. She requested damages in the
amount of $75,000 as compensation for the emotional injuries she suffered and the costs
associated with moving Ms. Lewis to Greenwood Cemetery.

       Following the Funeral Home’s filing of a motion for summary judgment, the trial
court found that there was “no evidence of the type of relationship between [Ms. Jackson]
and [the Funeral Home] which would give rise to a duty by the funeral home to change the
funeral arrangements at [her] request” and that the Funeral Home had not assumed such a
duty. The court dismissed the complaint, holding that the Funeral Home had negated an
essential element of Ms. Jackson’s complaint, namely the existence of a duty, and that Ms.
Jackson had not “produced any evidence of an issue of fact.”

                                          II. ISSUE

      Ms. Jackson’s sole issue on appeal is whether the trial court erred in granting the
motion for summary judgment after finding that the Funeral Home did not owe her a duty of
care.

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                             III. STANDARD OF REVIEW

        Summary judgment is appropriate where: (1) there is no genuine issue with regard to
the material facts relevant to the claim or defense contained in the motion and (2) the moving
party is entitled to judgment as a matter of law on the undisputed facts. Tenn. R. Civ. P.
56.04. A properly supported motion for summary judgment “must either (1) affirmatively
negate an essential element of the nonmoving party’s claim; or (2) show that the nonmoving
party cannot prove an essential element of the claim at trial.” Hannan v. Alltel Publ’g Co.,
270 S.W.3d 1, 9 (Tenn. 2008). When the moving party has made a properly supported
motion, the “burden of production then shifts to the nonmoving party to show that a genuine
issue of material fact exists.” Id. at 5; see Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.
1997); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). The nonmoving party may not
simply rest upon the pleadings but must offer proof by affidavits or other discovery materials
to show that there is a genuine issue for trial. Tenn. R. Civ. P. 56.06. If the nonmoving party
“does not so respond, summary judgment, if appropriate, shall be entered.” Tenn. R. Civ.
P. 56.06.

        On appeal, this court reviews a trial court’s grant of summary judgment de novo with
no presumption of correctness. See City of Tullahoma v. Bedford County, 938 S.W.2d 408,
412 (Tenn. 1997). In reviewing the trial court’s decision, we must view all of the evidence
in the light most favorable to the nonmoving party and resolve all factual inferences in the
nonmoving party’s favor. Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim
v. Knox. County Bd. of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts
support only one conclusion, then the court’s summary judgment will be upheld because the
moving party was entitled to judgment as a matter of law. See White v. Lawrence, 975
S.W.2d 525, 529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

                                     IV. DISCUSSION

       Ms. Jackson asserts that the Funeral Home had a duty to conform to a reasonable
person standard of care under all of the circumstances and that it breached that duty by
proceeding with the funeral when it became aware that a person with authority to control the
disposition of the body disagreed with the arrangements. She further contends that the duty
at issue arose from her right to control the disposition of the body. The Funeral Home
responds that it did not owe a duty to Ms. Jackson because there was no relationship between
the parties. The Funeral Home further asserts that the duty Ms. Jackson sought to impose
upon it was unreasonable.

       In order to prevail in a negligence action in Tennessee, the plaintiff must prove that
(1) a duty of care was owed by the defendant; (2) the defendant’s conduct fell below the

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applicable standard of care, resulting in a breach of the duty; (3) the plaintiff suffered an
injury or loss as a result of the breach of the duty; (4) the defendant’s breach of the duty was
cause in fact of the injury or loss; and (5) the defendant’s breach of the duty was the
proximate or legal cause of the injury or loss. McClung v. Delta Square Ltd., P’ship, 937
S.W.2d 891, 894 (Tenn. 1996). In claims for negligent infliction of emotional distress, the
claim must include the above elements, as well as expert proof establishing that the
plaintiff’s emotional distress was “serious” or “severe.” Eskin v. Bartee, 262 S.W.3d 727,
735 (Tenn. 2008). Whether a plaintiff sought recovery for negligence or negligent infliction
of emotional distress, the threshold element is always duty of care because without a legal
duty, there can be no conduct that breaches the duty. Hale v. Ostrow, 166 S.W.3d 713, 716-
17 (Tenn. 2005). The analysis of duty is specific to the particular plaintiff and defendant
involved. Nichols v. Atnip, 844 S.W.2d 655, 662 (Tenn. Ct. App. 1992). Whether a
defendant owed a duty is a question of law, and whether that duty was breached is a question
of fact. Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 366 (Tenn. 2009); see also
Biscan v. Brown, 160 S.W.3d 462, 478 (Tenn. 2004). Thus, in the case at bar, the trial
court’s holding for summary judgment was appropriate if, as a matter of law, the Funeral
Home did not owe Ms. Jackson a duty of care.

        The question of whether a duty exists “requires consideration of whether ‘such a
relation exists between the parties that the community will impose a legal obligation upon
one for the benefit of others – or, more simply, whether the interest of the plaintiff which has
suffered invasion was entitled to legal protection at the hands of the defendant.’” Coln v.
City of Savannah, 966 S.W.2d 34, 39 (Tenn. 1998) (quoting Prosser & Keaton on Torts § 37
at 236 (5th ed. 1984)), overruled on other grounds by Cross v. City of Memphis, 20 S.W.3d
642, 645 (Tenn. 2000). Duty is defined as “the legal obligation owed by defendant to
plaintiff to conform to a reasonable person standard of care for the protection against
unreasonable risks of harm,” and a duty exists “if defendant’s conduct poses an unreasonable
and foreseeable risk of harm.” McCall, 913 S.W.2d at 153 (emphasis added). A risk is
unreasonable where “the foreseeable probability and gravity of harm posed by defendant’s
conduct outweigh the burden upon defendant to engage in alternative conduct that would
have prevented the harm.” Id. “Assuming a duty of care is owed, be it a duty to refrain from
creating a danger or a duty to warn against an existing danger, it must then be determined
whether a defendant has conformed to the applicable standard of care.” Coln, 966 S.W.2d
at 39. “In a negligence action, the standard of conduct is always . . . reasonable care in light
of the apparent risk.” McCall, 913 S.W.2d at 153.

       Ms. Jackson cited Steinbrunner v. Turner Funeral Home, Inc., No. E2001-00014-
COA-R3-CV, 2002 WL 14088 (Tenn. Ct. App. Jan. 2, 2002), perm. app. denied (Tenn. July
15, 2002) in support of her assertion. In Steinbrunner, the court held that the funeral home
owed decedent’s wife “a duty to conform to a reasonable person standard of care under all

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of the circumstances” and that the duty “was based upon the relationship between the
parties.” 2002 WL 14088, at *8. Here, while Ms. Jackson was an appropriate next of kin,
she was not the party contracting with the Funeral Home as was the case in Steinbrunner.
Ms. Jackson argues that her relationship to the deceased and corresponding authority to
dispose of the body gave rise to the same duty found in Steinbrunner. We disagree.

        We do not believe that imposing a duty upon the Funeral Home to protect the interest
at stake here, Ms. Jackson’s participation in the planning of the funeral, is justified under the
circumstances. Because Ms. Lewis did not have a surviving spouse, Ms. Jackson, Mr.
Burkhart, and Mr. Sharp had authority to bury the body as the decedent’s adult children. 22A
A M. J UR. 2 D Dead Bodies § 20 (2011). This authority would provide standing for them to
bring suit for the negligent handling or improper burial of their mother’s body. See
Crawford v. J. Avery Bryan Funeral Home, Inc., 253 S.W.3d 149, 159-60 (Tenn. Ct. App.
2007) (concluding that “the person or persons who have the right to control disposition of
the body” have standing to bring claims for interference with a dead body); see also Akers
v. Buckner-Rush Enterprises, Inc., 270 S.W.3d 67, 73 (Tenn. Ct. App. 2007) (establishing
the “order of priority among relatives of the deceased for bringing tort claims arising from
unauthorized mutilation of a dead body”). However, this authority would not impose a duty
on the Funeral Home to resolve a family conflict or delay the burial because a relative who
took no part in contracting for the service disagreed with the arrangements. In so concluding,
we note that the interest at stake in the Steinbrunner, Crawford, and Akers cases was vastly
different from the interest at stake in this case. Additionally, the duty of reasonable care
sought in this case was not the same duty found in Steinbrunner, Crawford, and Akers. It is
the relationship between the parties to the suit that determines whether a duty existed and
what type of duty was owed. In this case, there simply was no relationship between the
parties to impose the type of duty sought by Ms. Jackson. Additionally, if we were to impose
such a duty, the burden in preventing the harm and protecting the interest at stake could be
insurmountable because in cases such as this case where several members of a family have
a right to control the disposition of the body, the Funeral Home would be tasked with
locating each person and ensuring that each person was in agreement.

       We acknowledge that the Funeral Home had a duty to handle the decedent’s body
appropriately and bury the body properly and that Ms. Jackson could bring a suit alleging that
the Funeral Home had somehow mishandled the corpse. However, the Funeral Home did not
have a duty to ensure that all of the decedent’s relatives with the right to control disposition
of the body were in agreement with the arrangements or the place of burial. Thus, the
Funeral Home affirmatively negated an essential element of Ms. Jackson’s claim, namely that
she was owed a duty under the circumstances presented. Based upon our review of the
evidence in the record, in the light most favorable to Ms. Jackson, we conclude that there are



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no genuine issues of material fact. Accordingly, we also conclude that the trial court did not
err in granting the motion for summary judgment.

                                    V. CONCLUSION

      The judgment of the trial court is affirmed, and the cause is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Kristie
Jackson.


                                           ______________________________________
                                           JOHN W. McCLARTY, JUDGE




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