The opinion
2020 IL App (2d) 190627
No. 2-19-0627
Opinion filed December 21, 2020
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
RAASHAN COLEY, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
)
v. ) No. 17-L-480
)
BRADSHAW & RANGE FUNERAL HOME, )
P.C., ) Honorable
) David P. Brodsky,
Defendant-Appellee. ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE BRIDGES delivered the judgment of the court, with opinion.
Justices Jorgensen and Brennan concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Raashan Coley (Coley), proceeding pro se, appeals the trial court’s dismissal of
his claim for negligent interference with his right to the possession of his deceased daughter’s
remains. Defendant, Bradshaw & Range Funeral Home, P.C. (Bradshaw), had moved to dismiss
the claim, pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-
619 (West 2018)), arguing that section 45 of the Disposition of Remains Act (the Remains Act)
(755 ILCS 65/45 (West 2014)) shielded it from liability. On appeal, Coley argues that his claim
should not have been dismissed, because Bradshaw failed to meet section 45’s requirements. Coley
is not challenging the outcome of the jury trial on his claims for intentional infliction of emotional
distress and willful and wanton conduct. We affirm.
2020 IL App (2d) 190627
¶2 I. BACKGROUND
¶3 Raashanai J. Coley (Raashanai) died intestate on September 5, 2014, after being struck in
the stomach by her mother, Nicholette Lawrence, following a period of prolonged neglect and
abuse. Bradshaw was the funeral establishment that handled Raashanai’s remains and facilitated
their transfer to the crematory. At the instruction of her maternal grandfather, Carlton North,
Raashanai’s body was cremated on September 26, 2014. The cremation was performed by Mt.
Olivet Memorial Park Ltd. (Mt. Olivet). Coley did not learn of his daughter’s death and cremation
until October 9, 2014. Coley maintains that, as next of kin, he had the right to control the
disposition of his daughter’s remains.
¶4 On May 1, 2015, Coley filed in the circuit court of Lake County his first complaint, against
Bradshaw and Mt. Olivet. Coley voluntarily dismissed this action on October 4, 2016, and refiled
his case on June 28, 2017. On May 10, 2018, Coley filed an amended complaint, against Bradshaw
only, alleging intentional infliction of emotional distress (count I), willful and wanton/reckless
interference with the right to possess and preserve the body of the minor decedent (count II), and
negligent interference with the right of the parent to possess and preserve the body of the minor
decedent (count III).
¶5 The pertinent allegations of count III of Coley’s amended complaint were as follows:
(1) apart from Lawrence, who was charged with Raashanai’s murder, Coley was Raashanai’s only
adult heir and next of kin; (2) Bradshaw did not attempt to contact Coley regarding the disposition
of Raashanai’s remains; (3) Bradshaw knew or should have known that Lawrence was charged
with the murder of Raashanai and thus not entitled to control the disposition of Raashanai’s
remains; (4) Bradshaw had a duty not to interfere with Coley’s right to possess his daughter’s
remains; (5) Bradshaw breached that duty when it failed to obtain Coley’s authorization for the
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cremation, secured and transmitted invalid authorization forms for the cremation, and transported
or allowed the transportation of Raashanai’s remains for cremation; and (6) these breaches caused
Coley damages in the form of severe emotional distress, mental suffering, humiliation, and
anguish.
¶6 Bradshaw moved to dismiss count III of Coley’s amended complaint, pursuant to section
2-619(a)(9), arguing as follows: (1) between the time of Raashanai’s death and her cremation,
Coley was in Mexico, evading capture by United States law enforcement officials; (2) North told
Bradshaw that he did not know the whereabouts of Coley or how to contact him; (3) Bradshaw
received a release authorization (Release) from Lawrence dated September 23, 2014, authorizing
North to arrange for the disposition of Raashanai’s remains; and (4) on September 25, 2014,
Bradshaw received two authorizations (Authorization Forms) from North for the cremation. One
was an “Authorization for Removal of Decedent,” which stated: “I (we) hereby represent that I am
(we are) of the same and nearest degree of relationship to the deceased and/or are legally authorized
or charged with the responsibility for such burial and/or other disposition.” The other was a
cremation authorization form, which stated: “There is another living persons [sic] (Nicholette
Lawrence) who has the right to control the final disposition of the decedent but that person has
provided, me (us) with written permission to arrange for the cremation of the decedent.” Bradshaw
argued that, because it relied on these representations from North, it could not be held liable under
an ordinary negligence theory. In support, Bradshaw cited section 45 of the Remains Act, which
states, “There shall be no liability for *** a funeral establishment that carries out *** the directions
of any person who represents that the person is entitled to control the disposition of the decedent’s
remains.” 755 ILCS 65/45 (West 2014).
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¶7 Bradshaw’s motion was supported by an affidavit from North, in which he stated that he
was Raashanai’s maternal grandfather and that he resided in Oregon. He said that he first learned
of Raashanai’s death on September 6, 2014. He learned from the Lake County Coroner’s Office
that the coroner was holding Raashanai’s body and that an autopsy had been performed. Afterward,
the body was placed in the coroner’s morgue while the coroner waited for next of kin to claim the
remains. Raashanai’s body remained unclaimed at the morgue for at least three weeks, after which
the coroner’s office informed North that it would release Raashanai’s remains to him.
¶8 The coroner’s office recommended Bradshaw to North. North contacted Bradshaw’s
funeral director, Richard Bradshaw, who asked about Coley’s whereabouts. North informed
Richard Bradshaw that Coley had been incarcerated in various prisons for much of Raashanai’s
life, that it had been over a year since he had heard from Coley, and that he did not know where
Coley or any of his immediate family lived or how to contact them. Richard Bradshaw informed
North that, before Bradshaw would allow him to provide for the final disposition of Raashanai’s
body and for cremation, it would require a release from Lawrence transferring her rights to him. It
was Lawrence’s decision that Raashanai be cremated, and North agreed with her. North provided
Bradshaw with the Release as well as the two Authorization Forms.
¶9 In response to Bradshaw’s motion to dismiss, Coley argued that nothing in Illinois law
gave a party the ability to transfer to another person his or her right to control a decedent’s remains
and, as such, the Release and the Authorization Forms were ineffective. Further, the Release itself
was evidence that Bradshaw knew that Lawrence had been charged with Raashanai’s murder and
that it knew that Lawrence was disqualified from determining the disposition of the remains
pursuant to section 20(b) of the Remains Act (755 ILCS 65/20(b) (West 2014)). Therefore,
Bradshaw clearly knew that it had an obligation to make reasonable efforts to locate Coley, under
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section 5 of the Remains Act (755 ILCS 65/5 (West 2014)), which it did not do. With regard to
the Release and the Authorization Forms, Bradshaw knew that Lawrence had no authority to
control the disposition of Raashanai’s remains and, as such, knew that North’s representations that
he was entitled to control the disposition of the remains were to the contrary. As such, section 45
did not apply, because there was no reliance.
¶ 10 In reply, Bradshaw argued as follows. Coley failed to respond to North’s affidavit with any
counteraffidavit, and therefore the facts in North’s affidavit must be taken as true. Further, even if
the allegations in Coley’s response were treated as true, that would not allow him to proceed on a
negligence theory, as those facts would support a willful and wanton/reckless interference theory.
¶ 11 The trial court granted Bradshaw’s motion to dismiss count III. The case then proceeded
to a jury trial on counts I and II, with the jury finding in favor of Bradshaw on both counts.
¶ 12 Coley filed a posttrial motion to set aside the verdict and for a new trial. The motion mostly
focused on what evidence was admitted at trial, with a single paragraph arguing that the trial court
erred in dismissing count III. The motion claimed that count III would have had a lower burden of
proof than the other counts and would not have required a showing of willful or wanton conduct,
but it otherwise contained no explanation as to how the trial court erred. Coley’s reply in support
of his motion expanded somewhat on this point, arguing that the protections of section 45 did not
apply, because Bradshaw knew that Coley had the greater right to control the disposition of the
remains and as such was not entitled to rely on North’s representations.
¶ 13 Coley timely appealed.
¶ 14 II. ANALYSIS
¶ 15 A. Standard of Review
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¶ 16 Coley argues that the trial court erred when it granted Bradshaw’s section 2-619(a)(9)
motion to dismiss count III for negligent interference with the possession of his daughter’s
remains. Section 2-619(a)(9) of the Code allows a defendant to move to dismiss a claim where
“the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect
of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2018). A section 2-619(a)(9) motion to
dismiss allows for issues of law and easily proven issues of fact related to the affirmative matter
to be disposed of early in litigation. Reynolds v. Jimmy John’s Enterprises, LLC, 2013 IL App
(4th) 120139, ¶ 30. In such a motion, the defendant is effectively saying, “ ‘Yes, the complaint
was legally sufficient, but an affirmative matter exists that defeats the claim.’ ” Winters v. Wangler,
386 Ill. App. 3d 788, 792 (2008). “Immunity from tort liability pursuant to statute is an affirmative
matter properly raised in a section 2-619 motion to dismiss.” Sandholm v. Kuecker, 2012 IL
111443, ¶ 54. When considering a motion to dismiss pursuant to section 2-619, a court must accept
as true all well-pleaded facts, as well as any reasonable inferences drawn from those facts, but not
mere conclusions unsupported by specific facts. Patrick Engineering, Inc. v. City of Naperville,
2012 IL 113148, ¶ 31. The court must also interpret all pleadings and supporting documents in the
light most favorable to the nonmoving party. Snyder v. Heidelberger, 2011 IL 111052, ¶ 8. The
dismissal of a claim pursuant to section 2-619(a)(9) is reviewed de novo. Id.
¶ 17 This appeal centers on whether section 45 of the Remains Act shields Bradshaw from
liability under Coley’s negligence claim. This is an issue of statutory interpretation. The primary
goal of statutory interpretation is to ascertain and give effect to the intent of the legislature. Ryan
v. Board of Trustees of the General Assembly Retirement System, 236 Ill. 2d 315, 319 (2010). The
best indication of the legislature’s intent is the plain language of the statute itself. Id. In determining
the plain meaning of statutory language, the court looks to the statute as a whole, the subject it
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addresses, and the apparent intent of the legislature. People v. Perry, 224 Ill. 2d 312, 323 (2007).
Where the statutory language is clear and unambiguous, it must be applied without resorting to
additional tools of statutory interpretation. Benzakry v. Patel, 2017 IL App (3d) 160162, ¶ 74. The
construction of a statute is a question of law and is reviewed de novo. Sperl v. Henry, 2018 IL
123132, ¶ 23.
¶ 18 B. The Disposition of Remains Act
¶ 19 Section 5 of the Remains Act (755 ILCS 65/5 (West 2014)) sets forth a list of individuals
who have the right to dispose of a decedent’s remains, prioritizing such individuals in the following
order: any individual designated by the decedent in a written instrument, the executor of the
decedent’s estate if they are carrying out instructions contained in the decedent’s will, the
decedent’s spouse, the decedent’s adult children, the decedent’s parents, adults in the next degrees
of kindred, and so on.
¶ 20 Section 20(b) of the Remains Act provides that “[i]f any person who would otherwise have
the right to control the disposition *** has been charged with first or second degree murder *** in
connection with the decedent’s death and those charges are known to the funeral director ***, that
person’s right to control is relinquished ***.” Id. § 20(b).
¶ 21 There has been no prior case that examines section 45 of the Remains Act and as such this
is an issue of first impression. Section 45 of the Remains Act reads as follows:
“There shall be no liability for a cemetery organization, a business operating a crematory
or columbarium or both, a funeral director or an embalmer, or a funeral establishment that
carries out the written directions of a decedent or the directions of any person who
represents that the person is entitled to control the disposition of the decedent’s remains.
Nothing herein shall be intended or construed to reduce or eliminate liability for the gross
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negligence or willful acts of any cemetery organization, business operating a crematory or
columbarium or both, funeral director or embalmer, or funeral establishment.” Id. § 45.
Under the plain language of the statute, in order to be shielded from liability by section 45, a
defendant must show the following: (1) the defendant is a cemetery organization, a business
operating a crematory or columbarium or both, a funeral director or an embalmer, or a funeral
establishment; (2) the defendant carried out the written directions of a decedent or the directions
of any person who represents that the person is entitled to control the disposition of the decedent’s
remains; and (3) the claims against the defendant do not constitute gross negligence or willful acts.
¶ 22 The first element is not at issue in this appeal, as there is no dispute regarding Bradshaw’s
status as a funeral establishment. Likewise, the third element is not at issue in this case, as the
dismissed claim did not allege gross negligence or willful conduct on the part of Bradshaw.
¶ 23 C. Section 45 Does Not Require Reasonable Reliance
¶ 24 Coley asserts that, to claim the protection of section 45 of the Remains Act, a defendant
must reasonably rely on the representations of the person claiming to be entitled to dispose of the
decedent’s remains and, likewise, that the language of section 20(b) creates a duty for a funeral
director not to rely on the instructions of a person who the funeral director knows is charged with
the murder of the decedent. Additionally, because the language of section 20(b) is more specific,
it should control over the more general language of section 45. Bradshaw maintains that section
45’s plain language is unambiguous and does not include anything about reliance and that, as such,
Bradshaw was not required to demonstrate reasonable reliance to claim the statute’s protections.
Likewise, Bradshaw argues that Coley has stretched section 20(b) “well-beyond any reasonable
interpretation” and that nothing in section 20(b) refers to section 45 or the liability of funeral
establishments. In regard to section 20(b) being more specific than section 45, Bradshaw argues
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that the sections address different subjects and that section 45 is far more specific regarding a
funeral establishment’s liability.
¶ 25 We disagree with Coley’s interpretations of sections 20(b) and 45 of the Remains Act. “It
is a cardinal rule of statutory construction that we cannot rewrite a statute, and depart from its plain
language, by reading into it exceptions, limitations or conditions not expressed by the legislature.”
People ex rel. Birkett v. Dockery, 235 Ill. 2d 73, 81 (2009). The plain language of section 45
contains no reference to reasonable reliance, and to interpret the statute as otherwise would be
reading into it limitations that are not present in the text. Likewise, the plain language of section
20(b) does not place any duties or obligations on the funeral director, but rather makes the
relinquishment of a killer’s right to control the disposition of the remains conditional upon the
funeral director’s knowledge of the charge.
¶ 26 D. Reasonable Reliance Is Not Required to Avoid Absurd Outcomes
¶ 27 Coley argues that reading section 45 of the Remains Act as not requiring reasonable
reliance on the part of the funeral establishment would lead to absurd outcomes. It would allow a
funeral establishment to escape liability for knowingly allowing a murderer to dictate how the
remains of their victim are to be disposed or to escape liability for carrying out the instructions of
a five-year-old child. Bradshaw argues that section 45 limits a funeral establishment’s liability for
regular negligence but not for gross negligence or willful and wanton conduct, such as knowingly
relying on a false representation.
¶ 28 While it is true that statutes should be interpreted to avoid absurd, unreasonable, or unjust
results that the legislature could not have intended (Palm v. Holocker, 2018 IL 123152, ¶ 21), we
do not find that reasonable reliance is necessary to avoid an absurd result. Section 45 already takes
into account the type of knowing actions described by Coley, as it protects funeral establishments
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from negligent conduct, but not gross negligence or willful conduct. Willful conduct can be either
intentional or reckless. Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 275 (1994). Willful conduct
can include a “conscious disregard for the right of another to possess and preserve the body of [a]
decedent for burial.” Rekosh v. Parks, 316 Ill. App. 3d 58, 71 (2000). As such, a funeral
establishment could be held liable in the scenarios described by Coley, since knowingly carrying
out the directions of someone who is not authorized to determine how to dispose of the decedent’s
remains would constitute willful conduct outside the protection of section 45. Indeed, Coley was
able to pursue his claim for willful and wanton interference at trial, based on the same set of facts
as his negligence claim.
¶ 29 E. The Crematory Regulation Act Does Not Support Reasonable Reliance
¶ 30 Coley argues that the reasonable-reliance element of section 45 is also supported by section
20(a)(1)(N) of the Crematory Regulation Act, which states,
“The cremation authorization form, other than pre-need cremation forms, shall also be
signed by a funeral director or other representative of the funeral establishment that
obtained the cremation authorization. That individual shall merely execute the cremation
authorization form as a witness and shall not be responsible for any of the representations
made by the authorizing agent, unless the individual has actual knowledge to the contrary.”
410 ILCS 18/20(a)(1)(N) (West 2014).
Coley argues that the Crematory Regulation Act should be considered in pari materia with the
Remains Act. As such, Coley argues, because the Crematory Regulation Act does not allow a
funeral director to rely on representations made in a cremation authorization form that he or she
knows to be false, neither should section 45. Bradshaw argues that the Crematory Regulation Act
was not raised before the trial court and that Coley’s argument should be deemed forfeited. Further,
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Bradshaw maintains that nothing in section 20 references section 45 and that section 20 applies
only to witnesses to the authorization form and not funeral establishments like Bradshaw.
¶ 31 While Coley did cite the Crematory Regulation Act in his amended complaint, he did not
raise the argument that it must be considered in pari materia with the Remains Act in his response
to Bradshaw’s motion. However, forfeiture is a doctrine of administrative convenience, not one of
jurisdiction, and the interests of maintaining a sound body of precedent can override forfeiture.
People v. Segoviano, 189 Ill. 2d 228, 243 (2000). Accordingly, we will briefly discuss the
Crematory Regulation Act. “Under the doctrine of in pari materia, two statutes dealing with the
same subject will be considered with reference to one another to give them harmonious effect.”
People v. McCarty, 223 Ill. 2d 109, 133 (2006). We agree with Coley that section 20(a)(1)(N) of
the Crematory Regulation Act and section 45 of the Remains Act address the same subject matter.
However, we disagree that reading reasonable reliance into section 45 is necessary to harmonize
the statutes. Section 20(a)(1)(N) makes a funeral director responsible for knowingly witnessing
false representations in a cremation authorization form. Such conduct would be essentially the
same as knowingly carrying out the directions of someone who is unauthorized to control the
disposition of the decedent’s remains, which, as we discussed, would constitute willful conduct.
Rekosh, 316 Ill. App. 3d at 71.
¶ 32 F. The Slayer Statute Does Not Support Reasonable Reliance
¶ 33 Coley argues that section 2-6 of the Probate Act of 1975 (755 ILCS 5/2-6 (West 2014))
(commonly known as the Slayer Statute), which bars a person who intentionally and justifiably
kills a decedent from receiving property from the decedent through inheritance laws or otherwise,
should also be considered in pari materia with section 20(b) of the Remains Act. While the two
statutes arguably address the same subject matter, i.e., a limitation on the rights of a decedent’s
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killer, it is unclear what the Slayer Statute adds to our analysis or how it is in disharmony with
section 45. Coley maintains that allowing Bradshaw to claim immunity under section 45 of the
Remains Act would render the Slayer Statute and sections 5 and 20(b) of the Remains meaningless.
We disagree. The legislature’s decision to limit the liability of funeral establishments for violations
under certain circumstances does not render the other statutes meaningless. Section 5 still sets forth
who has priority with regard to the disposition of a decedent’s remains, section 20(b) still revokes
the rights of a decedent’s killer to control the disposition of the remains, and the Slayer Statute still
prevents a decedent’s killer from benefitting from the decedent’s death.
¶ 34 G. Cochran Does Not Require Reasonable Reliance
¶ 35 Coley argues that the supreme court’s recognition of negligent interference with the right
to possess a corpse as a cause of action, in Cochran v. Securitas Security Services USA, Inc., 2017
IL 121200, ¶ 24, applies to funeral homes. As such, he should be allowed to pursue his negligence
claim against Bradshaw. Bradshaw notes that it never argued that section 45 was a per se bar to
negligence claims but, rather, that it bars negligence claims only in instances where a funeral
establishment carries out the instructions of a person representing that he or she is entitled to
control of a decedent’s remains. In Cochran, a morgue’s security staff failed to properly tag and
log the body of a deceased man and subsequently released the body to a funeral home for cremation
before an autopsy could be performed. Id. ¶¶ 3-7. We agree with Coley that Cochran applies to
funeral homes. However, we do not see how Cochran prevents Bradshaw from claiming the
protections of section 45 in the instant case. We agree with Bradshaw that section 45 does not bar
a funeral establishment from liability in all circumstances. Indeed, were a funeral establishment to
negligently mix up two bodies and send the wrong one out for cremation, as occurred in Cochran,
section 45 would not protect it.
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¶ 36 H. Bradshaw Established the Necessary Facts to Support Its Motion to Dismiss
¶ 37 Coley argues that, because the amended complaint alleges that Bradshaw knew that
Lawrence was charged with Raashanai’s murder, it was reasonable to infer that Bradshaw knew
that she had no right to control the disposition of Raashanai’s remains. As such, it could not have
reasonably relied on North’s representations, since they were based on the transfer of Lawrence’s
rights to North. Coley further argues that the deposition of Richard Bradshaw demonstrates that
he knew that Lawrence was in custody for Raashanai’s murder, since he called the coroner’s office
to find out. Additionally, Coley argues that the deposition testimony shows that the coroner’s
office suggested to Richard Bradshaw that he prepare something transferring Lawrence’s rights to
North and that neither Lawrence nor North suggested this procedure. Further, it was Richard
Bradshaw who gave North the Release and the Authorization Forms to complete, demonstrating
that Bradshaw was in essence making the representations—that Lawrence and subsequently North
had the right to dispose of Raashanai’s remains—to itself. Bradshaw counters that its motion to
dismiss was supported by an affidavit establishing that, when it facilitated the cremation of
Raashanai’s remains, it was carrying out the directions of a person representing that he had the
right to control the disposition of those remains. Further, Coley failed to rebut that affidavit with
a counteraffidavit or raise before the trial court the deposition testimony in his response to the
motion. As such, Coley should be barred from raising the deposition testimony now. Bradshaw
also maintains that Coley misrepresents the deposition testimony and that, while it knew that
Lawrence was incarcerated, it did not know that Lawrence had been charged with Raashanai’s
murder.
¶ 38 With regard to the deposition testimony, arguments not raised before the trial court are
forfeited on appeal. IPF Recovery Co. v. Illinois Insurance Guarantee Fund, 356 Ill. App. 3d 658,
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666 (2005). Coley’s failure to raise the deposition testimony in response to Bradshaw’s motion to
dismiss forfeits the issue on appeal.
¶ 39 We now move to the substance of Bradshaw’s motion to dismiss. If the grounds for
dismissal do not appear on the face of the pleading being attacked, a section 2-619 motion to
dismiss must be supported by an affidavit. In support of its motion to dismiss, Bradshaw submitted
an affidavit by North, in which he stated that he completed and returned the signed Release and
the Authorization Forms. “When supporting affidavits have not been challenged or contradicted
by counter-affidavits or other appropriate means, the facts stated therein are deemed admitted.”
Zedella v. Gibson, 165 Ill. 2d 181, 185 (1995). However, on a section 2-619 motion, such an
affidavit may not be used to challenge the factual allegations of the plaintiff’s complaint, as that is
the function of a motion for summary judgment under section 2-1005 of the Code (735 ILCS 5/2-
1005 (West 2018)). Reynolds, 2013 IL App (4th) 120139, ¶ 34. Coley submitted no
counteraffidavit, but he did allege in his complaint that Bradshaw knew or should have known that
Lawrence was charged with Raashanai’s murder.
¶ 40 Upon consideration however, North’s affidavit does not challenge the factual allegations
of Coley’s complaint, particularly the allegation that Bradshaw knew that Lawrence was charged
with murder. Rather, the affidavit established the affirmative matter that North represented to
Bradshaw that he was entitled to control the disposition of Raashanai’s remains and that Bradshaw
carried out his instructions. As such, Bradshaw established the elements required by section 45.
¶ 41 As to Coley’s argument that the representations were not North’s because Bradshaw
instructed him to fill out the forms, he cites no case law in support of his claim, and at least one of
the forms, the cremation authorization, is required by statute. See 410 ILCS 18/20 (West 2014).
Accordingly, we reject that argument.
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¶ 42 I. Bradshaw Was Not Obligated to Locate Coley
¶ 43 Coley argues that count III of his amended complaint alleged three alternative theories of
negligence: (1) Bradshaw failed to obtain a proper cremation form from Coley, i.e., he did not use
reasonable efforts to locate Coley; (2) Bradshaw secured and transmitted an invalid cremation
form; and (3) Bradshaw transported and/or allowed the transportation of Raashanai’s remains for
cremation, without proper authorization from Coley. Coley maintains that, even if section 45 of
the Remains Act bars recovery for Bradshaw’s transmission of an invalid cremation form based
on North’s representations, it would not preclude recovery based on Bradshaw’s failure to make
reasonable efforts to locate Coley. In support of his contention that Bradshaw was obligated to
make reasonable efforts to locate him, Coley cites section 5(5) of the Remains Act, which states,
“if one of the surviving competent parents is absent, the remaining competent parent shall be vested
with the rights and duties of this Act after reasonable efforts have been unsuccessful in locating
the absent surviving competent parent.” 755 ILCS 65/5(5) (West 2014). Coley also cites Rekosh
for the proposition that “[a] funeral home’s facilitation of a cremation that is not legally authorized,
knowing that there are next of kin who are potentially unaware of the death or the arrangements
and perhaps have objections, may reasonably be regarded as [extreme and outrageous conduct].”
Rekosh, 316 Ill. App. 3d at 66.
¶ 44 While Rekosh found that the funeral home’s facilitation of an unauthorized cremation could
constitute extreme and outrageous conduct, it is silent as to what obligation if any the funeral home
had to try to locate the next of kin. Id. As for section 5(5) of the Remains Act, it likewise does not
say who is supposed to make reasonable efforts to locate the absent parent. However, sections 5(4)
and 5(6) place the onus on the family to locate absent members. Section 5(4) provides that “less
than one-half of the surviving adult children shall be vested with the rights and duties of this
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Section if they have used reasonable efforts to notify all other surviving competent adult children
of their instructions,” and section 5(6) states that “less than the majority of surviving competent
adult persons of the same degree of kindred shall be vested with the rights and duties of this Act if
those persons have used reasonable efforts to notify all other surviving competent adult persons of
the same degree of kindred of their instructions.” 755 ILCS 65/5(4), (6) (West 2014). Additionally,
the Crematory Regulation Act, which uses the same order of priority as section 5 of the Remains
Act to determine who has the right to serve as an authorizing agent, places the obligation on the
authorizing agent to make reasonable efforts to locate persons with a superior priority right. 410
ILCS 18/15, 20(a)(1)(E) (West 2014) (“In the event there is another living person who has a
superior priority right to that of the authorizing agent, the form shall contain a representation that
the authorizing agent has made all reasonable efforts to contact that person ***.”). While we do
not go so far as to state that there are no circumstances under which a funeral establishment might
be obligated to make reasonable efforts to locate a decedent’s next of kin, Coley has failed to
demonstrate that under the circumstances of this case Bradshaw was obligated to make such
efforts.
¶ 45 III. CONCLUSION
¶ 46 Section 45 of the Remains Act entitled Bradshaw to immunity from Coley’s negligence
claim because Bradshaw sufficiently established that it carried out the instructions of North, who
represented that he was entitled to control the disposition of Raashanai’s remains. Coley’s
arguments that section 45 required Bradshaw to show that it reasonably relied on North’s
instructions are inconsistent with the statute’s plain language. Accordingly, the judgment of the
circuit court of Lake County is affirmed.
¶ 47 Affirmed.
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No. 2-19-0627
Cite as: Coley v. Bradshaw & Range Funeral Home, P.C., 2020 IL App
(2d) 190627
Decision Under Review: Appeal from the Circuit Court of Lake County, No. 17-L-480; the
Hon. David P. Brodsky, Judge, presiding.
Attorneys Raashan Coley, of Lisbon, Ohio, appellant pro se.
for
Appellant:
Attorneys Timothy D. McMahon, J. Jason Coggins, and Michael D. Barnes,
for of Wiedner & McAuliffe, Ltd., of Chicago, for appellee.
Appellee:
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