                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                    October 16, 2002 Session

                  GINNIE LEACH, ET AL. v. TIM TAYLOR, ET AL.

                  A Direct Appeal from the Circuit Court for Gibson County
                     No. 7852   The Honorable Clayburn Peeples, Judge



                   No. W2002-01091-COA-R3-CV - Filed December 30, 2002


        Plaintiffs sued Defendants for intentional and negligent infliction of emotional distress,
stemming from comments Defendants made concerning the condition of Plaintiffs’ father’s corpse.
The Circuit Court, Gibson County, granted the Defendants’ Tenn. R. Civ. P. 12 Motion to Dismiss.
Plaintiffs appeal. We affirm.

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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. joined and HOLLY KIRBY LILLARD, J., dissented.

Joseph R. Taggart, Jackson, For Appellant, Ginnie Leach and J. T. Hill, Jr.

Michael E. Evans, Nashville, For Appellees, Tim Taylor and Larry Taylor

                                              OPINION

        This is an intentional and/or negligent infliction of emotional distress case. In July 1997, J.T.
Hill, Sr. (The “Decedent”) died after suffering a stroke. His children, Ginny Leach and J.T. Hill, Jr.
(“Plaintiffs”) signed a Consent for Organ Donation, which allowed for the harvesting of the
Decedent’s spleen, kidney, liver, and lymph nodes. Plaintiffs also contacted Tim and Larry Taylor
at Hunt Funeral Home (together with Tim and Larry Taylor, the “Defendants”) to arrange for the
embalming and burial of the Decedent. Hunt Funeral Home picked up the Decedent’s body and
Defendants Tim and Larry Taylor performed the embalming. At some point during the process of
preparing the body, Tim and Larry Taylor allegedly made the following comments to the Plaintiffs:

                1. That their [the Plaintiff’s] father was in “terrible shape” causing
                them [Tim and Larry Taylor] to have difficulty with the embalming
                process.
                   2. That the Decedent’s breast bone had been broken and not put back
                   together; and that “everything was gone.”

                   3. That they [Tim and Larry Taylor] did not see the heart or lungs;
                   that the chest cavity was empty, leading Plaintiffs to reasonably
                   believe the hospital and donor services exceeded the scope of the
                   limited donation.

                   4. That “they [donor services] even took his [the Decedent’s] private
                   parts.”

                   5. That all of the arteries and veins had been left open, i.e. “Not tied
                   off” by hospital personnel.

                   6. That they [Tim and Larry Taylor] were forced to treat [the
                   Decedent] as an autopsy case due to the condition of the body.

                   7. That the autopsy-style embalming process required them [Tim and
                   Larry Taylor] to use the individual veins in the arms, legs and neck.

                   8. That they [Tim and Larry Taylor] had to fill [the Decedent’s] chest
                   cavity with bags of sawdust to make up for the missing organs; all of
                   which lead Plaintiffs to reasonably believe their father’s body had
                   been mutilated by the hospital or donor services personnel.

        After hearing these statements, the Plaintiffs initiated civil actions against all medical entities
connected with the harvesting of the Decedent’s organs.1 The discovery process eventually required
the disinterment, autopsy, and re-interment of the Decedent’s corpse.2 The autopsy, which was
performed on October 4, 1999, revealed that the body had been properly processed by the organ
transplant team and that all organs, except those authorized for harvesting, were present. Plaintiffs
subsequently dropped their civil suits against the medical entities.




         1
             This case was styled J.T. H ill, Sr., deceased, by and throu gh h is children and next of kin, Ginnie Leach and
J.T. H ill, Jr. And Ginnie Leach an d J.T. Hill, Jr., ind ividually v. Ja ckson-M adiso n Coun ty Ge nera l Hospital D istrict,
DCI Donor Services, Inc., Lifenet, and Dr. Amadeo Marcos.

         2
           Plaintiffs contacted Defendants about the costs of disinterment and re-interm ent. Plaintiffs claim that this
conversation put D efendants on notice that Plaintiffs were acting in reliance upon Defendants’ representations and
allegations.

                                                             -2-
         On June 15, 2000, Plaintiffs filed suit against Defendants for negligent and intentional
infliction of emotional distress and outrageous conduct.3 This suit was subsequently non-suited in
the Spring of 2001. On January 9, 2002, Plaintiffs again brought suit against Tim and Larry Taylor
and Hunt Funeral Home, alleging negligent and intentional infliction of emotional distress and
outrageous conduct stemming from the statements made to the Plaintiffs concerning the condition
of their father’s body. An amended complaint was filed on January 25, 2002. On February 8, 2002,
Defendants filed a Motion to Dismiss pursuant to Rule 12, Tennessee Rules of Civil Procedure along
with a memorandum in support of that Motion. The Defendants’ alleged that:

                 1. Plaintiffs failed to comply with any relevant statute of limitations
                 and the so-called discovery rule does not apply, such that this lawsuit
                 should be dismissed as untimely filed;

                 2. If the discovery rule otherwise might apply to a similar lawsuit,
                 Plaintiffs are not entitled to rely upon it in this particular case; and

                 3. The Complaint and Amended Complaint fail more generally to
                 state a claim upon which relief can be granted.

        On April 5, 2002, Plaintiffs filed a Response to Defendants’ Motion to Dismiss, along with
affidavits in support of their Response. The Defendants’ Motion to Dismiss was heard on April 8,
2002. An Order granting the Defendants’ Motion was filed on April 19, 2002.

       Plaintiffs appeal and raise the following issues for our review as stated in their brief:

                 I. Whether or not Plaintiffs complied with the applicable statute of
                 limitations and whether or not operation of the discovery rule should
                 toll the relevant statute of limitations.

                 II. Whether or not the discovery rule should apply in this case.

                 III. Defendants’ Tennessee Rule of Civil Procedure 12.02(6) claim.

                 IV. Whether or not the trial judge properly granted the Defendants’
                 Motion to Dismiss predicated upon Tennessee Rule of Civil
                 Procedure 12.06(6).

We will address the first two issues together.

                              Statute of Limitations and Discovery Rule



       3
           Circuit Court of Gibson County Docket Number 7712.

                                                     -3-
        Defendants argue that the six-month statute of limitations for slander should apply in this
case. We disagree. Though based upon oral statements, Plaintiffs have alleged intentional or
negligent infliction of emotional distress not slander. Consequently, a one year statute of
limitations applies.

        In addressing the issue of whether the discovery rule is applicable, we are careful to note
that this case does not stem from the mere uttering of the statements by the Defendants but rather
from the discovery that those statements were false. It is the falsity, and not the speaking, that is
the gravamen of the Plaintiffs’ Complaint. Short of holding that the Plaintiffs should have
automatically distrusted Tim and Larry Taylor, or that the Plaintiffs should have known by some
instinct or power that these businessmen, whom the Plaintiffs had known for some time and with
whom they had previously conducted business, were not forthright, there is nothing in the record
before us to indicate that the Plaintiffs knew or should have known that the statements were false
until the autopsy results of October 4, 1999. We, therefore, hold that the Plaintiffs’ cause of
action arose in October 4, 1999 upon the discovery that the Defendants’ statements were false.
Applying the one year statute of limitations, Plaintiffs had until October 4, 2000 to file their
claim for intentional or negligent infliction of emotional distress.

        Plaintiffs initial action was filed on June 15, 2000. This action was subsequently non-
suited in the Spring of 2001. The complaint from which the present appeal arises was filed on
January 9, 2002. Although this action was filed more than one year after October 4, 1999, it was
nevertheless rendered timely by Tennessee’s savings statute, which allows a timely filed action
that has been non-suited to be recommenced within one year of the date on which the non-suit
was taken. See T.C.A. § 28-1-105(a) (Supp.2000).

       We now turn to issues three and four, which we will address concurrently.

                                    Tenn. R. Civ. P. 12 Motion

        A motion to dismiss a complaint for failure to state a claim upon which relief can be
granted tests the legal sufficiency of the complaint. It admits the truth of all relevant and material
allegations but asserts that such allegations do not constitute a cause of action as a matter of law.
See Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997). Obviously, when considering a motion to
dismiss for failure to state a claim upon which relief can be granted, we are limited to the
examination of the complaint alone. See Wolcotts Fin. Serv., Inc. v. McReynolds, 807 S.W.2d
708 (Tenn. Ct. App. 1990). The basis for the motion is that the allegations in the complaint
considered alone and taken as true are insufficient to state a claim as a matter of law. See
Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975). In considering such a motion, the court
should construe the complaint liberally in favor of the plaintiff, taking all the allegations of fact
therein as true. See Cook Utihoven v. Spinnaker’s of Rivergate, Inc., 878 S.W.2d 934 (Tenn.
1994).




                                                 -4-
         We will first address the question of whether the Plaintiffs’ claims for intentional
infliction of emotional distress and outrageous conduct can survive the Defendants’ Motion to
Dismiss. For clarification, we note that intentional infliction of emotional distress and
outrageous conduct are simply different names for the same cause of action which has three
essential elements: (1) the conduct complained of must be intentional or reckless, (2) it must be
so outrageous that it is not tolerated by a civilized society, and (3) it must result in serious mental
injury. See Bain v. Wells, 936 S.W.2d 618 (Tenn.1997). The actionable conduct under this
theory must be set out in the pleadings. Medlin v. Allied Investment Co., 398 S.W.2d 270
(Tenn. 1966). The actionable conduct should be set out in the complaint describing the
substance and the severity of the conduct that is allegedly outrageous. Braswell v. Carothers,
863 S.W.2d 722 (Tenn. Ct. App.1993). In Medlin v. Allied Investment Co., 398 S.W.2d 270
(Tenn. 1966), our Supreme Court addressed the question of what constitutes outrageous conduct
and held as follows:

               These factors are set out in the Restatement of Torts(2d), sec. 46,
               Outrageous Conduct Causing Severe Emotional Distress.

               (1) One who by extreme and outrageous conduct intentionally or
               recklessly causes severe emotional distress to another is subject to
               liability for such emotional distress, and if bodily harm results from
               it, for such bodily harm.

               Clarification of this statement is found in the following comment:

               d. Extreme and Outrageous Conduct. The cases thus far decided
               have found liability only where the defendant’s conduct has been
               extreme and outrageous. It has not been enough that the defendant
               has acted with an intent which is tortious or even criminal, or that he
               has intended to inflict emotional distress, or even that his conduct is
               characterized by malice, or a degree of aggravation which would
               entitle the plaintiff to punitive damages for another tort. Liability has
               been found only where the conduct has been so outrageous in
               character, and so extreme in degree, as to go beyond all bounds of
               decency, and to be regarded as atrocious, and utterly untolerable in a
               civilized community. Generally, the case is one in which the
               recitation of the facts to an average member of the community would
               arouse his resentment against the actor, and lead him to exclaim,
               “Outrageous.”

Id. at 274.

        We find that the statements made by the Defendants, when taken alone, do not rise to the
level of “conduct that is so outrageous that it is not tolerated by a civilized society.” Bain, at 622.


                                                  -5-
 If, indeed, the Decedent’s body was mutilated by the harvesting of his organs, the Defendants
could have had a duty to inform the Decedent’s family. Therefore, the only fact that would make
these statements outrageous would be if the Defendants made them, knowing that the statements
were false. If, however, the Defendants discovered that their statements were misleading only
after the October 4, 1999 autopsy was performed, that is not outrageous conduct.4 Consequently,
in order for their intentional infliction of emotional distress case to survive the Defendants’
Motion to Dismiss, the Plaintiffs’ Amended Complaint would need to allege that the Defendants
knew the statements were false when they made them. However, it is not enough in an action for
outrageous conduct to plead only legal conclusion. Medlin at 275. In Swallows v. Western Elec.
Co., Inc., 543 S.W.2d 581, (Tenn. 1976), our Supreme Court discusses the rationale behind the
Medlin requirement:

                  [A]s pointed out in Medlin, “It is not enough in an action of this kind
                  to allege legal conclusion; the actionable conduct should be set out in
                  the [complaint].” This is so because the court has the burden of
                  determining, in the first instance, whether appellees’ conduct may
                  reasonably be regarded as so extreme and outrageous as to permit
                  recovery or whether the conduct is such as to be classed as “mere
                  insults, indignities, threats, annoyances, petty oppression, or other
                  trivialities,” for which appellees would not be liable.

Id at 583 (citations omitted).


     Having discussed supra the fact that the statements allegedly made by Tim and Larry Taylor
can only be deemed outrageous if Tim and Larry Taylor knew those statements to be false at the
time they were uttered, we now turn to the Appellants’ pleadings to determine if such knowledge
was alleged. In reviewing the pleadings in this matter, and construing them as liberally as we can
in favor of the Plaintiffs, we do not find any allegation from which we can infer that the
Defendants knew the statements concerning the Decedent’s condition were false when they
initially made those statements to the Plaintiffs. In pertinent part, Plaintiffs’ complaint reads as
follows:

                  13. These intentional, willful, wanton, malicious and/or negligent
                  acts by Defendants constituted:

                  (a) Wrongful interference with the right to burial;
                  (b) Prevention of a proper disposition of a body causing the
                  disinterment and reinterment and needless autopsy of Mr. Hill’s body;
                  and


         4
          This could be the basis for a negligent infliction of emotional distress claim, which would also fail for reasons
discussed infra.

                                                           -6-
               (c) Negligent interference with a corpse.

               *                               *                                 *

               15. Defendant[‘s] acts were intentional, willful, wanton or otherwise
               outside the bounds of common decency and constitute outrageous
               conduct.

               *                                   *                                 *

               24. Defendants continue to make the aforementioned statements
               regarding the condition of Mr. J.T. Hill, Sr.’s body at the time it was
               received for embalming. These misrepresentations...


       The Plaintiffs refer to the statements made by the Defendants as “misrepresentations” in
paragraph 24. While this term connotes falsity, falsity is not the dispositive issue here. After the
autopsy on Mr. Hill’s body, there is no dispute that the statements were, indeed,
misrepresentations. However, there is nothing in the word “misrepresentations” to indicate that
the maker knew the words were false when he uttered them. In order to satisfy the requirements
of Medlin, Plaintiffs would need to substitute the noun-form, “misrepresentations,” for the verb-
form, “misrepresent.” The word “misrepresent” indicates an intent to deceive or be unfair.
“Misrepresentations,” on the other hand, connotes only falsity. Although the distinction is subtle,
Medlin requires a pleading of more than falsity to make these statements outrageous.

         While we note that it is not entirely clear from the complaint that Defendants’ “acts”
include the speaking of the statements, we will infer in favor of the Plaintiffs that the uttering of
the statements is included in “acts.” In paragraph 13, Plaintiffs use the word “malicious” to
describe the acts of the Defendants. Since malice indicates that the actor desires to do harm or to
inflict suffering, giving Plaintiffs every inference in their favor, we could infer that, in the context
of this case, words spoken maliciously were made with knowledge of their falsity. However,
Plaintiffs’ complaint uses the word “malicious” only in connection with allegations of results
including: wrongful interference with the right to burial, prevention of proper disposition of a
body, and negligent interference with a dead body. Malicious acts are not alleged to have
resulted in outrageous conduct. In paragraph 15, where Plaintiffs do allege outrageous conduct,
Defendants “acts” become only “intentional,” “willful,” and “wanton.” To make a statement
intentionally or willfully simply implies that the speaker meant to say something. To speak
wantonly connotes mischief and is not sufficiently outrageous to meet the requirements of this
tort.

       While we may construe the complaint liberally in favor of the Plaintiffs, we are
nonetheless bound by the language used therein. Even stretching the plain language of this



                                                       -7-
complaint beyond the norm, and giving Plaintiffs all inferences allowable, we do not find
language to support a claim for outrageous conduct in these pleadings.

         Turning to the Plaintiffs’ claim for negligent infliction of emotional distress, we find that
it too cannot survive the Tenn. R. Civ. P. 12 motion. In order to make out a prima facie case of
negligent infliction of emotional distress, the plaintiff must prove the elements of duty, breach of
duty, injury or loss, causation in fact, and proximate cause. See Camper v. Minor, 915 S.W.2d
437, 446 (Tenn. 1996). In Camper, the Court further held that recovery for negligent infliction
of emotional distress claims, where there is no physical injury, is limited to serious or severe
emotional injury supported by expert medical or scientific proof. Id. The Plaintiffs’ Amended
Complaint alleges the following:

               25. As the direct result of the Defendants’ statements, Plaintiffs
               have suffered:
               (a) Fright, shock, anxiety & depression;
               (b) Nightmares;
               (c) Expenses for medical treatment;
               (d) Past, future impairment to the enjoyment of life; and
               (e) Out of pocket expenses for:
                       i. Exhumation/disinterment;
                       ii. Autopsy
                       iii. Re-interment; and
                       iv. Litigation expenses against the hospital, donor
                       services and physician.

        From the language “expenses for medical treatment” we hold that the Plaintiffs’
Complaint does not allege “serious or severe emotional injury supported by expert medical or
scientific proof” sufficient to overcome the Defendants’ Motion to Dismiss.

        For the foregoing reasons, we affirm the trial court’s order granting the Defendants’
Motion to Dismiss. Costs of appeal are assessed to the Appellants, Ginnie Leach and J.T. Hill,
Jr., and their surety.



                                       __________________________________________
                                       W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                                 -8-
