From the desk of Gordon C. Klug: Washington has recognized a cause of action for tortious interference with a dead body for over 100 years. This tort allows plaintiffs to pursue compensation for the emotional distress they suffer after learning that their loved ones’ remains were mistreated. Washington never clarified WHO can bring this type of lawsuit . . . until now. Last month the Washington Supreme Court recently took up this question for the first time.
Claims Pointer: The Washington Supreme Court held that family members beyond those just officially charged with “the care of the body” can bring a suit for tortious interference with a family member’s remains. Family members who had significant and substantial contact with the deceased person throughout their lifetime, as well as regular contact in the years prior to the death, will likely have standing to a lawsuit for the “tortious interference with a dead body.”
Fox v. City of Bellingham, No. 98514-6, 2021 Wash. LEXIS 155 (Mar. 18, 2021)
After Bradley Ginn Sr. passed away in 2018, the hospital in Bellingham did not have enough space to store his remains. Mr. Ginn’s body was then transferred to the City of Bellingham Fire Department. Without obtaining Ginn’s family’s permission, the fire department used Ginn’s body for training exercises. The members of the fire department took turns inserting tubes into his body, for a total of fifteen practice intubations. After learning this information, Ginn’s brother, Robert Fox, claimed that he suffered severe emotional distress.
Fox filed a suit against the City of Bellingham for tortious interference with a dead body in federal court. The City filed a motion for summary judgment, arguing that the plaintiff, Fox, did not have standing to bring this suit because he was not the custodian of his brother’s remains as defined under statute. Revised Code of Washington 68.50.160 outlines who has the right to control the remains of a deceased individual. Pursuant to that statute, Ginn’s wife was the only custodian of her husband’s remains. The federal court requested the Washington Supreme Court to provide clarification regarding who, under Washington law, has standing to bring an action for tortious interference with a dead body?
The action for tortious interference with a dead body allows for recovery for emotional harm and mental suffering caused by the willful misuse of a body. Willful misuse includes conduct that would naturally cause mental anguish, such as mutilation or improper burial of the body. Notably, tortious interference with a dead body is considered an intentional tort, which means that the misuse must be more than just negligent mistreatment.
Revised Code of Washington 68.50.160 outlines who has the right to control disposition of a deceased person’s remains. This right of control originally belongs to the deceased person’s immediate family members.
The Washington Supreme Court first noted that determining who has standing to bring a claim for tortious interference with a dead body is an issue of first impression for the court. The court then went on to consider if standing should be limited to only the individual who was charged with the care of the body under RCW 68.50.160. The court found that limiting standing to pursue a claim of tortious interference with a dead body to only immediate family members would be arbitrary and, in some cases, harmful. For example, if only the surviving spouse and children had standing to file such a suit, that would arbitrarily limit other family members who may have suffered severe emotional distress after learning their loved one’s body was willfully misused. The policy behind RCW 68.50.160 was to address the emotional distress that the departed’s loved ones experienced as a result of the desecration of the decedent’s body.
The court outlined a set of key factors that can be used to determine if an individual has standing to bring a claim for tortious interference with a dead body. First, family members who shared significant and substantial contacts with the deceased individual during their life are likely to be persons who may foreseeably suffer significant mental anguish. Another consideration, although not dispositive, is the regularity of contact between the deceased individual and the family member in the years prior to the death. The court goes on to clarify that they are not going to precisely define everyone that can bring a cause of action, but the factors outlined above are highly relevant. The Washington Supreme Court concluded by stating that the group of foreseeable plaintiffs that can bring an action for tortious interference with a dead body includes the outlined group of “close relatives” and those charged with the care of the body.
In this case, the plaintiff was the deceased’s biological brother. The two brothers lived together during their adult lives and spoke to each other on a weekly basis. Additionally, the plaintiff was in charge of preparing his deceased brother’s end of life celebration. Given these facts, the Washington Supreme Court held that this plaintiff was within the group of “close relatives.” Therefore, the plaintiff in this case had standing to bring this claim for tortious interference with a dead body.
THE BIG PICTURE
Despite the fact that the cause of action for tortious interference with a dead body has been around for over a century, lawsuits for this type of tort are rare. However, after this Washington Supreme Court opinion clarifying that a broader group of family members than just those charged with the care of the remains may have standing to pursue this type of claim, this type of lawsuit may become more prevalent. Notably, tortious interference with a dead body is a unique claim because it seeks recovery for purely emotional harms, but unlike other emotional harm torts, the plaintiff does not have to be present while the emotionally harmful conduct occurred. Rather, plaintiffs for this type of action can recover for emotional harm that is caused solely by learning about how the body was mistreated after the fact. Thus, the group of possible plaintiffs who could bring a suit for tortious interference with a dead body has the potential to be quite broad.