{ "id": 2573236, "name": "SHERRY E. KELSO, Adm'r of the Estate of Lisa L. Kelso, Deceased, et al., Plaintiffs-Appellants, v. JOHN WATSON, d/b/a Foley-Watson Mortuary, et al., Defendants-Appellees", "name_abbreviation": "Kelso v. Watson", "decision_date": "1990-09-11", "docket_number": "No. 3-90-0070", "first_page": "727", "last_page": "731", "citations": [ { "type": "official", "cite": "204 Ill. App. 3d 727" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "189 Ill. App. 48", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2909218 ], "opinion_index": 0, "case_paths": [ "/ill-app/189/0048-01" ] }, { "cite": "510 N.E.2d 1192", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1914, "pin_cites": [ { "page": "1195" } ], "opinion_index": 0 }, { "cite": "157 Ill. App. 3d 633", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3543946 ], "year": 1914, "pin_cites": [ { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0633-01" ] }, { "cite": "371 N.E.2d 373", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. App. 3d 111", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3414537 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/56/0111-01" ] }, { "cite": "360 N.E.2d 765", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 85", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463121 ], "pin_cites": [ { "page": "89-90" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0085-01" ] }, { "cite": "515 N.E.2d 668", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "680" } ], "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 476", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3467335 ], "year": 1976, "pin_cites": [ { "page": "496-97" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0476-01" ] }, { "cite": "444 N.E.2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 427", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5438992 ], "pin_cites": [ { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0427-01" ] }, { "cite": "506 N.E.2d 1370", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "154 Ill. App. 3d 574", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3648457 ], "year": 1982, "pin_cites": [ { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/154/0574-01" ] }, { "cite": "554 N.E.2d 988", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "196 Ill. App. 3d 727", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491008 ], "pin_cites": [ { "page": "731" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/0727-01" ] } ], "analysis": { "cardinality": 448, "char_count": 7761, "ocr_confidence": 0.757, "pagerank": { "raw": 7.814296427510288e-08, "percentile": 0.4576720496059809 }, "sha256": "93d467e24022d04c5e69ba31946aa19ab8fe6229b6d42d278bbbec0d77b177a4", "simhash": "1:c288b7b5025ec2cb", "word_count": 1235 }, "last_updated": "2023-07-14T21:36:30.653748+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "SHERRY E. KELSO, Adm\u2019r of the Estate of Lisa L. Kelso, Deceased, et al., Plaintiffs-Appellants, v. JOHN WATSON, d/b/a Foley-Watson Mortuary, et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE BARRY\ndelivered the opinion of the court:\nPlaintiffs, administrator of the estate of Lisa Kelso, deceased, and her next of kin, brought suit against defendant mortuary and mortician claiming damages for intentional infliction of emotional distress and improper disposal of the decedent\u2019s body. On defendant\u2019s motion, all four counts of the original complaint were dismissed for failure to state a cause of action. Plaintiffs amended counts II and IV, and defendant renewed his motion to dismiss. After a further hearing, the court granted defendant\u2019s motion and proposed to grant plaintiffs leave to further amend, but plaintiffs\u2019 counsel stated that he could not improve on the allegations. The court, accordingly, dismissed both counts of the amended complaint with prejudice, and this appeal followed. The dismissal of counts I and III, brought by the administrator, has not been appealed.\nThe amended complaint alleges in count II that defendant owed plaintiffs a duty to refrain from willful and wanton conduct; that in conscious disregard of this duty, defendant told plaintiffs that the decedent had acquired immune deficiency syndrome (AIDS), and that because of the disease her body had to be cremated instead of buried; that defendant \u201cknew or should have known\u201d that in fact decedent did not have AIDS; that had plaintiffs not been told that the decedent had AIDS they would have chosen interment as the appropriate disposition of the corpse; and that the proximate result of defendant\u2019s intentional conduct was extreme emotional distress suffered by the plaintiffs. In count IV, plaintiffs allege the same core facts and charge that defendant\u2019s willful and wanton disregard for the rights of plaintiffs as decedent\u2019s next of kin to dispose of the body in an appropriate manner caused them severe emotional distress.\nThe standards by which we review the circuit court\u2019s dismissal were summed up in Schaffer v. Zekman (1990), 196 Ill. App. 3d 727, 731, 554 N.E.2d 988, 991:\n\u201cIn reviewing the circuit court\u2019s dismissal, this court must accept as true all well-pleaded facts in the complaint and all reasonable inferences which can be drawn therefrom to determine, as a matter of law, whether the pleadings state a cause of action.' (Harris Trust & Savings Bank v. Phillips (1987), 154 Ill. App. 3d 574, 579, 506 N.E.2d 1370.) Conclusions of law or conclusions of fact not supported by allegations of specific facts will not be considered. Davis v. Keystone Printing Service, Inc. (1982), 111 Ill. App. 3d 427, 433, 444 N.E.2d 253.\u201d\nA cause of action for intentional infliction of emotional distress can be stated if the facts alleged demonstrate:\n\u201c(1) the defendant\u2019s conduct is so extreme and outrageous as to exceed all possible bounds of decency; (2) the emotional distress inflicted is so severe that no reasonable person could be expected to endure it; and (3) the defendant intended to inflict this distress or was substantially certain the conduct would result in severe distress.\u201d (Berkos v. National Broad casting Co. (1987), 161 Ill. App. 3d 476, 496-97, 515 N.E.2d 668, 680, citing Public Finance Corp. v. Davis (1976), 66 Ill. 2d 85, 89-90, 360 N.E.2d 765.)\nAs with any tort action, plaintiffs also must allege actual and proximate causation of the injury by defendant\u2019s conduct. Debolt v. Mutual of Omaha (1978), 56 Ill. App. 3d 111, 371 N.E.2d 373.\nIn this case, the complaint cannot withstand scrutiny because some of the essential elements are alleged in a conclusionary fashion without specific facts to support them. A mortician\u2019s telling of a lie to the next of kin concerning the decedent could, indeed, be considered outrageous conduct, especially where that lie accuses the deceased of having contracted an odious, sexually transmittable disease like AIDS. Cremation of a corpse against the wishes of the next of kin, if done maliciously, out of ill will or spite, likewise could be conduct sufficiently outrageous to support that element of the tort.\nThe intent and injury allegations, however, are purely conclusionary. With respect to the former, plaintiffs allege merely that defendant \u201cknew or should have known that plaintiff\u2019s decedent did not have AIDS.\u201d There are no facts to support the bald allegation that defendant intended to cause or recklessly disregarded the probability that plaintiffs would be emotionally distressed. We cannot tell from the allegations whether defendant knew that the decedent did not have AIDS at the time he discussed cremation with the plaintiffs. There are no facts from which we can determine how defendant knew in fact that the decedent did not have AIDS or why he should have known that she did not have the disease. If, for example, defendant possessed a death certificate stating that the decedent died from causes other than AIDS at the time he told plaintiffs otherwise, this fact should have been alleged. Nor are there facts alleged demonstrating that defendant knew that decedent\u2019s cremation would cause emotional distress to plaintiffs.\nWith respect to the allegations, of injury, plaintiffs allege only that the decedent was cremated and that \u201cas a proximate result of the defendant\u2019s conduct, *** plaintiff\u2019s decedent\u2019s next of kin underwent and continue to undergo extreme emotional distress.\u201d This bald allegation is unsupported by any factual allegation that demonstrates why cremation was particularly repugnant to plaintiffs, or why no reasonable person could expect to endure the degree of emotional distress inflicted upon them. If, for example, the next of kin held religious or moral beliefs that cremation was particularly immoral or offensive, such beliefs were not alleged.\nBecause all essential elements of the tort of intentional infliction of emotional distress were not alleged with sufficient factual specificity, the trial court did not err in dismissing amended count II of the complaint.\nPlaintiffs\u2019 count IV is similarly flawed. To state a cause of action based on the right of the next of kin to possession and preservation of the body of a decedent, plaintiffs must demonstrate by specific facts that defendant\u2019s conduct was willful and wanton. (Hearon v. City of Chicago (1987), 157 Ill. App. 3d 633, 637, 510 N.E.2d 1192, 1195, citing Mensinger v. O\u2019Hara (1914), 189 Ill. App. 48.) Plaintiffs here allege only the legal conclusion \u201c[t]hat the defendant knowingly and in a conscious disregard for the rights of the next of kin, did violate the aforesaid duty [not to willfully or wantonly violate the rights of the next of kin to make appropriate disposition of decedent\u2019s corpse] by knowingly and willfully cremating decedent\u2019s corpse.\u201d Without any facts to support the allegation that defendant knew the decedent did not have AIDS and without an allegation that plaintiffs had made known to defendant their desires that the decedent\u2019s body be interred, there is no factual support for the intent element in count IV.\nAs aforesaid, plaintiffs\u2019 counsel made it clear in the circuit court that plaintiffs could not improve upon their complaint. Having determined that the court correctly found that both counts failed to state a cause of action, we must affirm the judgment of dismissal with prejudice.\nThe judgment of the circuit court is affirmed.\nAffirmed.\nHEIPLE, P.J., and SCOTT, J., concur.", "type": "majority", "author": "JUSTICE BARRY" } ], "attorneys": [ "Michael J. Warner, of Braud/Warner, Ltd., of Rock Island (Duane Thompson, of counsel), for appellants.", "Burrel Barash, of Barash, Stoerzbach & Henson, of Galesburg, for appellee." ], "corrections": "", "head_matter": "SHERRY E. KELSO, Adm\u2019r of the Estate of Lisa L. Kelso, Deceased, et al., Plaintiffs-Appellants, v. JOHN WATSON, d/b/a Foley-Watson Mortuary, et al., Defendants-Appellees.\nThird District\nNo. 3-90-0070\nOpinion filed September 11, 1990.\nRehearing denied November 30, 1990.\nMichael J. Warner, of Braud/Warner, Ltd., of Rock Island (Duane Thompson, of counsel), for appellants.\nBurrel Barash, of Barash, Stoerzbach & Henson, of Galesburg, for appellee." }, "file_name": "0727-01", "first_page_order": 749, "last_page_order": 753 }