{ "id": 3462019, "name": "GENEVIEVE J. COURTNEY, Plaintiff-Appellee, v. ST. JOSEPH HOSPITAL, Defendant-Appellant", "name_abbreviation": "Courtney v. St. Joseph Hospital", "decision_date": "1986-11-07", "docket_number": "No. 86-0358", "first_page": "397", "last_page": "403", "citations": [ { "type": "official", "cite": "149 Ill. App. 3d 397" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "263 A.2d 118", "category": "reporters:state_regional", "reporter": "A.2d", "pin_cites": [ { "page": "121" } ], "opinion_index": 0 }, { "cite": "437 Pa. 373", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1927834 ], "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/pa/437/0373-01" ] }, { "cite": "556 P.2d 257", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10458607 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/p2d/556/0257-01" ] }, { "cite": "327 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 8579351 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/w-va/174/0458-01" ] }, { "cite": "317 S.E.2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "102-03" } ], "opinion_index": 0 }, { "cite": "69 N. 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App.", "case_ids": [ 2193535 ], "year": 1981, "pin_cites": [ { "page": "808" } ], "opinion_index": 0, "case_paths": [ "/mich-app/102/0798-01" ] }, { "cite": "17 J. Marshall L. Rev. 563", "category": "journals:journal", "reporter": "J. Marshall L. Rev.", "year": 1984, "pin_cites": [ { "page": "582-83" } ], "opinion_index": 0 }, { "cite": "146 Ill. App. 3d 763", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3570504 ], "weight": 5, "pin_cites": [ { "page": "765" }, { "page": "765" }, { "page": "765" }, { "page": "766" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/146/0763-01" ] }, { "cite": "487 N.E.2d 75", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "opinion_index": 0 }, { "cite": "138 Ill. App. 3d 976", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499822 ], "weight": 4, "pin_cites": [ { "page": "979" }, { "page": "979" }, { "page": "978" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0976-01" ] }, { "cite": "487 N.E.2d 1071", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 634", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3567572 ], "weight": 2, "pin_cites": [ { "page": "637" }, { "page": "637-38" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0634-01" ] }, { "cite": "452 N.E.2d 694", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "116 Ill. App. 3d 939", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3637484 ], "year": 1985, "pin_cites": [ { "page": "830-31" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0823-01" ] }, { "cite": "475 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "174 N.E.2d 157", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "22 Ill. 2d 73", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2791226 ], "weight": 2, "pin_cites": [ { "page": "84" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0073-01" ] }, { "cite": "163 Cal. Rptr. 445", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1961, "pin_cites": [ { "page": "450" } ], "opinion_index": 0 }, { "cite": "104 Cal. App. 3d 207", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 1976999 ], "year": 1961, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/104/0207-01" ] }, { "cite": "457 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "opinion_index": 0 }, { "cite": "98 Ill. 2d 546", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3122805 ], "weight": 6, "pin_cites": [ { "page": "555" }, { "page": "555" }, { "page": "550" }, { "page": "553" }, { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0546-01" ] }, { "cite": "98 Ill. App. 644", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5301537 ], "opinion_index": 0, "case_paths": [ "/ill-app/98/0644-01" ] }, { "cite": "302 N.E.2d 58", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill. 2d 114", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2938987 ], "pin_cites": [ { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0114-01" ] }, { "cite": "189 Ill. App. 48", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2909218 ], "weight": 5, "pin_cites": [ { "page": "53-54" }, { "page": "54" }, { "page": "54" }, { "page": "54-57" } ], "opinion_index": 0, "case_paths": [ "/ill-app/189/0048-01" ] } ], "analysis": { "cardinality": 799, "char_count": 17082, "ocr_confidence": 0.736, "pagerank": { "raw": 2.1922477511222976e-07, "percentile": 0.7739399092379518 }, "sha256": "3cbafa9d75531d2ddab2a932b05ee85b6964edd967c2bcc36661a8987f9f0ac8", "simhash": "1:21653cac23fb2a21", "word_count": 2766 }, "last_updated": "2023-07-14T21:36:15.078878+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GENEVIEVE J. COURTNEY, Plaintiff-Appellee, v. ST. JOSEPH HOSPITAL, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE SULLIVAN\ndelivered the opinion of the court:\nThis is a permissive interlocutory appeal pursuant to Supreme Court Rule 308 (87 Ill. 2d R. 308). The question presented for our review is whether Illinois recognizes a cause of action \u201cfor emotional distress arising from the negligent mishandling of a corpse.\u201d\nPlaintiff\u2019s action against defendant alleged that it was negligent in failing to preserve the body of her deceased husband in a condition suitable for an open casket wake and funeral following his death. The body decomposed when the refrigeration unit in the hospital morgue malfunctioned. Plaintiff has acknowledged that she is seeking damages solely for \u201cemotional anguish\u201d which did not result in physical injury or illness. The circuit court denied defendant\u2019s motion to dismiss the complaint for failure to state a cause of action and subsequently made the finding necessary for discretionary review under Supreme Court Rule 308 (87 Ill. 2d R. 308). The question of law identified by the court is whether Illinois recognizes a cause of action for \u201cemotional distress arising from the negligent mishandling of a corpse.\u201d\nOpinion\nIn Mensinger v. O\u2019Hara (1914), 189 Ill. App. 48, plaintiff, the husband of the deceased, sued defendants, two undertakers and their assistant, to recover damages for mental suffering allegedly caused when defendants, without plaintiff\u2019s knowledge or consent, cut off and removed the hair from the head of the deceased, thereby rendering her body unfit to be viewed prior to burial. The circuit court dismissed the complaint and plaintiff appealed.\nOn review, the court observed that although a dead body is not considered as property, \u201cthe law does recognize a right *** arising out of the duty of the nearest relatives of the deceased to bury their dead, which authorizes and requires them to take possession and control of the dead body for the purpose of giving it a decent burial.\u201d (Mensinger v. O\u2019Hara (1914), 189 Ill. App. 48, 53-54. See also Leno v. St. Joseph Hospital (1973), 55 Ill. 2d 114, 117, 302 N.E.2d 58.) \u201cThis right,\u201d the court continued, \u201cis an exclusive right to the custody and possession of the remains, and in the absence of any testamentary disposition, belongs to the surviving husband or wife, if any, or if there be none, then to the next of kin.\u201d (Mensinger v. O\u2019Hara (1914), 189 Ill. App. 48, 54.) The court held that \u201cany wilful or wanton infringement of this recognized legal right, by the intentional mutilation of the body of the deceased, will subject the wrongdoer to an action on the case for damages, and *** in such action damages will be allowed for any mental suffering proximately resulting from the wrongful act, even though no actual pecuniary loss be alleged or proved.\u201d (189 Ill. App. 48, 54. Accord, Palenzke v. Bruning (1900), 98 Ill. App. 644.) Construing the averments in the complaint as having alleged an intentional act, the court in Mensinger found that plaintiff had stated a cause of action, reversed the order of dismissal and remanded for further proceedings. The court expressly declined to decide whether recovery may be had for mental suffering alone, in the absence of any allegation or proof of wilful or wanton misconduct. Mensinger v. O\u2019Hara (1914), 189 Ill. App. 48, 54-57.\nOur research has not disclosed any Illinois case in which a cause of action for mental distress caused by the negligent mishandling of a corpse has been recognized. \u201cCourts generally have been reluctant to allow recovery for purely mental or emotional distress.\u201d (Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 555, 457 N.E.2d 1.) According to Rickey, \u201ccourts have given as reasons for this reluctance apprehensions that the door would be opened for fraudulent claims, that damages would be difficult to ascertain and measure, that emotional injuries are hardly foreseeable and that frivolous litigation would be encouraged.\u201d (98 Ill. 2d 546, 555, 457 N.E.2d 1.) However, we seriously question whether these apprehensions are well founded where the mishandling of a corpse is concerned.\nIn their treatise on the law of torts, Prosser and Keeton note that although \u201cthe traditional rule has denied recovery for mere negligence [in the handling of corpses], without circumstances of aggravation, *** [t]here are by now *** a series of cases allowing recovery for negligent embalming, negligent shipment, running over the body, and the like, without such circumstances of aggravation.\u201d (W. Prosser & W. Keeton, Torts, at 362 (5th ed. 1984).) This also represents the position taken in the Restatement (Second) of Torts. \u201cWhat all of these cases appear to have in common,\u201d Prosser and Keeton explain, is \u201can especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious.\u201d W. Prosser & W. Keeton, Torts, at 362 (5th ed. 1984).\nIn view of the \u201cspecial circumstances\u201d to which Prosser and Keeton refer, we do not believe that recognizing a cause of action for the negligent mishandling of a corpse would open the door for fraudulent claims or encourage frivolous litigation. Moreover, the emotional injuries caused thereby are \u201chighly foreseeable.\u201d (Allen v. Jones (1980), 104 Cal. App. 3d 207, 214, 163 Cal. Rptr. 445, 450.) Furthermore, although damages for emotional distress may be difficult to ascertain and measure, we note that in recognizing a cause of action for the intentional infliction of mental distress, our supreme court, in Knierim v. Izzo (1961), 22 Ill. 2d 73, 174 N.E.2d 157, observed that \u201c[i]t is equally difficult *** to compute the money value of pain and suffering for which damages are allowed by juries each day in personal injury actions, and mental suffering has been recognized in this State as an element of compensable damage in actions for defamation [citations], for malicious prosecution in aggravated cases [citation], and for assault [citation].\u201d 22 Ill. 2d 73, 84, 174 N.E.2d 157.\nWere we writing on a clean slate, we would be inclined to permit the complaint in this case to stand. However, we believe that recognition of plaintiff\u2019s cause of action is foreclosed by our supreme court\u2019s decision in Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 457 N.E.2d 1.\nIn Rickey, the eight-year-old plaintiff sought damages for the emotional distress he suffered as a result of witnessing his younger brother\u2019s near strangulation by an article of clothing which became entangled in the defendant\u2019s escalator. In reviewing this claim, the supreme court noted that in Illinois \u201crecovery for negligently caused emotional distress suffered by the direct victim or by a bystander who witnesses the injury of another has been consistently denied unless it was accompanied by a contemporaneous physical injury to or impact on the plaintiff.\u201d (Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 550, 457 N.E.2d 1.) The court stated further that \u201c[t]he underlying question is *** whether any person who suffers emotional distress can recover, but the question here specifically is whether a bystander at the injury of another who, generally under the decisions, is a close relative of the bystander can recover.\u201d 98 Ill. 2d 546, 553, 475 N.E.2d 1.\nIn Rickey, the court recognized a limited exception to the \u201cimpact rule\u201d wherein \u201ca bystander who is in a zone of physical danger and who, because of the defendant\u2019s negligence, has reasonable fear for his own safety is given a right of action for physical injury or illness resulting from emotional distress.\u201d (Rickey v. Chicago Transit Authority (1983), 98 Ill. 2d 546, 555, 457 N.E.2d 1.) Plaintiff concedes that she was not within a \u201czone of physical danger\u201d causing her to fear for her own safety and that she did not suffer physical injury or illness as a result of her emotional distress upon learning that her husband\u2019s body had decomposed and could not be viewed. Nevertheless, plaintiff contends that Rickey does not bar her action because the \u201czone of physical danger\u201d test cannot and should not be applied to the facts of this case, she was the direct victim of defendant\u2019s alleged negligence, not a bystander, and the injury she sustained (emotional distress) was foreseeable. We disagree.\nInitially, we note that the \u201czone of physical danger\u201d test adopted in Rickey represents an exception to the \u201cimpact rule.\u201d This exception has been strictly construed. (Siemieniec v. Lutheran General Hospital (1985), 134 Ill. App. 3d 823, 830-31, 480 N.E.2d 1227, appeal allowed, (1985), 108 Ill. 2d 589 (negligent infliction of emotional distress claim in wrongful-birth action rejected where plaintiffs, parents of a hemophiliac child, could not satisfy the Rickey requirement that they were in a zone of physical danger and had reasonable fear for their own safety); Maere v. Churchill (1983), 116 Ill. App. 3d 939, 944-45, 452 N.E.2d 694 (Rickey exception to the \u201cimpact rule\u201d was not broad enough to permit recovery for the emotional distress allegedly caused by the negligence of defendants in performing legal services for the plaintiffs).) Indeed, trial courts have been cautioned to limit claims of negligent infliction of emotional distress to those that closely adhere to the rule enunciated in Rickey. (See Lewis v. Westinghouse Electric Corp. (1985), 139 Ill. App. 3d 634, 637, 487 N.E.2d 1071.) Two recent decisions illustrate this limitation.\nIn Gihring v. Butcher (1985), 138 Ill. App. 3d 976, 487 N.E.2d 75, the plaintiff found her husband, who had committed suicide, dead in their garage. In her action for negligent infliction of emotional distress, plaintiff claimed that her husband\u2019s suicide was the result of medical malpractice by the defendant doctors with whom her husband had consulted.\nIn affirming the dismissal of the action, the court stated that under Rickey, to plead successfully a cause of action for negligent infliction of emotional distress, the plaintiff must allege that defendant\u2019s negligence put him or her in reasonable fear for his or her own personal safety. (Gihring v. Butcher (1985), 138 Ill. App. 3d 976, 979, 487 N.E.2d 75.) The plaintiff in Gihring failed to make this allegation and the court rejected her invitation \u201cto carve out an exception to Rickey for malpractice cases,\u201d finding \u201cno basis in the language of Rickey which would support the establishment of that exception,\u201d and noting that \u201cno such exception has thus far been applied.\u201d 138 Ill. App. 3d 976, 979, 487 N.E.2d 75.\nIn Johnston v. St. Anne\u2019s Hospital West, Inc. (1986), 146 Ill. App. 3d 763, plaintiffs, decedent\u2019s wife and daughter, discovered decedent\u2019s body in defendants\u2019 hospital room. Prior to entering the room they had not been advised of his death. In count V of their six-count amended complaint, plaintiffs sought damages for negligent infliction of emotional distress, asserting that defendants had failed to advise them of decedent\u2019s acute condition and of his death upon their arrival at the hospital. The court affirmed the dismissal of count V, stating that although plaintiffs might have been able to demonstrate that they had suffered the physical injury or illness referred to in Rickey, they could not have shown that they were in a zone of physical danger and had reasonable fear for their own safety. (146 Ill. App. 3d 763, 765.) The court noted that plaintiffs had not witnessed any accident or injury to the deceased and had not been placed in a zone of physical danger causing them to fear for their own personal safety when they discovered the body. 146 Ill. App. 3d 763, 765.\nAs in Gihring, the court in Johnston declined plaintiffs\u2019 invitation to expand Rickey by recognizing a cause of action for negligent infliction of emotional distress under circumstances where a hospital has failed to inform promptly a patient\u2019s relatives of his death. Johnston v. St. Anne\u2019s Hospital West, Inc. (1986), 146 Ill. App. 3d 763, 765.\nIt is apparent from a review of the foregoing authorities that plaintiff has failed to state a cause of action for the negligent infliction of emotional distress. She has not alleged that she was placed within a zone of physical danger causing her to fear for her own safety when she discovered that her husband\u2019s body had decomposed and could not be viewed. Nor has she claimed that she suffered physical injury or illness as a result of her emotional distress. Plaintiff, however, argues that these requirements apply only to bystanders and not also to direct victims of negligence and submits that the mishandling of her husband\u2019s corpse constituted a tort committed directly upon her. Again, we must disagree.\nNotwithstanding the supreme court\u2019s reference to the plaintiff in Rickey as a \u201cbystander,\u201d it has been correctly observed that \u201cthe nature of the zone-of-physical-danger rule is such that it allows recovery only to direct victims of negligence, because recovery must be predicated on a reasonable fear for one\u2019s own safety.\u201d (Note, Rickey v. Chicago Transit Authority: Consistent Limitation on Recovery for Negligent Infliction of Emotional Distress in Illinois, 17 J. Marshall L. Rev. 563, 582-83 (1984).) Under the zone-of-physical-danger standard, the proper focus is on whether plaintiff was in proximity to the danger, not whether he witnessed an accident to a third person. (Lewis v. Westinghouse Electric Corp. (1985), 139 Ill. App. 3d 634, 637-38, 487 N.E.2d 1071.) Accordingly, we reject plaintiff\u2019s argument that the requirements for recovery under Rickey do not apply to direct victims of negligence.\nFinally, plaintiff contends that the \u201czone of physical danger\u201d test adopted in Rickey is merely a test to ensure that any recovery for negligent infliction of emotional distress is limited to foreseeable distress (accompanied by definite damages). Plaintiff argues, in effect, that recovery should be allowed in any case where, as here, the defendant reasonably could have foreseen that his negligence would cause emotional distress. We note, however, that this interpretation of Rickey has been rejected as \u201cuntenable.\u201d See Gihring v. Butcher (1985), 138 Ill. App. 3d 976, 978, 487 N.E.2d 75; Johnston v. St. Anne\u2019s Hospital West, Inc. (1986), 146 Ill. App. 3d 763, 766.\nWhere there is no contemporaneous physical injury to or impact on him, a plaintiff seeking damages for the negligent infliction of emotional distress must allege both that he was in a zone of physical danger causing him to fear for his own safety and that he suffered physical injury or illness as a result of his emotional distress. Plaintiff has alleged neither. Accordingly, we conclude that her complaint should have been dismissed. In response to the question of law identified by the circuit court, we hold that Illinois does not recognize a cause of action for emotional distress arising from the negligent mishandling of a corpse.\nFor the foregoing reasons, the order denying defendant\u2019s motion to dismiss plaintiff\u2019s complaint is reversed and the cause is remanded to the circuit court with directions to dismiss the complaint.\nReversed and remanded with directions.\nMURRAY and PINCHAM, JJ., concur.\nTo the cases cited in the notes to Prosser and Keeton\u2019s text can be added the following decisions: Allinger v. Kell (1981), 102 Mich. App. 798, 808, 302 N.W.2d 576, 579, modified on appeal (1981), 411 Mich. 1053, 309 N.W.2d 547; Thompson v. Duncan Bros. Funeral Homes, Inc. (1982), 116 Misc. 227, 455 N.Y.S.2d 324; Dumouchelle v. Duke University (1984), 69 N. C. App. 471, 474, 317 S.E.2d 100, 102-03; Whitehair v. Highland Memory Gardens, Inc. (W. Va. 1985), 327 S.E.2d 438. Contra: Dean v. Chapman (Okla. 1976), 556 P.2d 257; Papieves v. Kelly (1970), 437 Pa. 373, 379, 263 A.2d 118,121.\n\u201cOne 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.\u201d (Restatement (Second) of Torts sec. 868 (1979).) The official commentary notes that in practice \u201cthe technical right [of control of the body] has served as a mere peg upon which to hang damages for the mental distress inflicted upon the survivor,\u201d and that in reality \u201cthe cause of action has been exclusively one for the mental distress.\u201d Under the rule set forth in section 868, \u201c[t]here is no need to show physical consequences of the mental distress.\u201d The rule \u201capplies 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.\u201d", "type": "majority", "author": "PRESIDING JUSTICE SULLIVAN" } ], "attorneys": [ "Peterson, Ross, Schloerb & Seidel, of Chicago (James D. Wangelin and Theodore T. Schuld, of counsel), for appellant.", "Thomas Leahy, of Leahy & Donovan, of Chicago (David A. Novoselsky and Kathleen M. Krist, of counsel), for appellee." ], "corrections": "", "head_matter": "GENEVIEVE J. COURTNEY, Plaintiff-Appellee, v. ST. JOSEPH HOSPITAL, Defendant-Appellant.\nFirst District (5th Division)\nNo. 86\u20140358\nOpinion filed November 7, 1986.\nPeterson, Ross, Schloerb & Seidel, of Chicago (James D. Wangelin and Theodore T. Schuld, of counsel), for appellant.\nThomas Leahy, of Leahy & Donovan, of Chicago (David A. Novoselsky and Kathleen M. Krist, of counsel), for appellee." }, "file_name": "0397-01", "first_page_order": 419, "last_page_order": 425 }