# Christensen v. Superior Court > California Supreme Court · December 2, 1991 · 54 Cal. 3d 868 URL: https://www.frixlaw.com/law-library/cases/9613421 ## Case - **Full name:** DONALD PAUL CHRISTENSEN Et Al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; PASADENA CREMATORIUM OF ALTADENA Et Al., Real Parties in Interest - **Court:** California Supreme Court - **Decided:** December 2, 1991 - **Citations:** 54 Cal. 3d 868; 2 Cal. Rptr. 2d 79; 91 Daily Journal DAR 14722; 820 P.2d 181; 1991 Cal. LEXIS 5401 - **Precedential status:** Published - **Opinion:** Concurring in part by Mosk - **Judges:** Baxter, Kennard - **Cited by:** 357 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9613421 ## How later opinions describe it (automated extraction) - concluding that the class of plain- tiffs with standing to sue went beyond those “who have the statutory right to control disposition of the remains and those who contract for disposition,” to include those “close family members who were aware that the funeral . . . services w… - concluding that the class of plaintiffs with standing to sue went beyond those “who have the statutory right to control disposition of the remains and those who contract for disposition,” to include those “close family members who were aware that the funeral ... services were … - holding that intentional infliction of emotional distress requires conduct that is “directed at the plaintiff’ or which occurs in “the presence of a plaintiff of whom the defendant is aware” - stating the tort of intentional mishandling of a corpse "actually seek[s] to protect the per-sonal feelings of the survivors. Therefore the tort is properly categorized as intentional infliction of emotional distress . . . ." - stating the tort of intentional mishandling of a corpse “actually seek[s] to protect the personal feelings of the survivors. Therefore the tort is properly categorized as intentional infliction of emotional distress.... ” ## Opinion text *907 MOSK, J. Concurring and Dissenting. I agree with the majority that those close family members who were aware of both the decedent’s death and the nature of the funeral services to be performed may state a claim for negligent infliction of emotional distress. 1 I also agree that the power to control the disposition of remains devolves according to the priorities established by section 7100 of the Health and Safety Code. I do not agree, however, that no plaintiffs may sue for intentional infliction of emotional distress (IIED) because the admittedly outrageous conduct was not directed primarily at them, nor did they witness it. It is paradoxical that the majority find defendants liable for negligent but not intentional conduct. The latter, being more reprehensible, should render the perpetrators liable to a greater rather than a lesser extent. The majority assert that to require defendants to perform the acts in plaintiffs’ presence ensures the high degree of culpability necessary to justify the greater damages allowed in an IIED case. In my view, if the acts alleged are found to be true, defendants are highly culpable regardless of whether plaintiffs witnessed the mutilation. I would allow the trier of fact to consider the issue of IIED. Further, I would not limit the class of plaintiffs in IIED cases to blood relations. The issue of whether a person suffered severe distress is properly left to the trier of fact. We should not rule that, as a matter of law, a decedent’s estranged sibling may have suffered emotional distress but not a decedent’s close and longtime business partner. I would allow plaintiffs to proceed on the IIED theory because defendants’ alleged conduct was reckless. IIED may be shown in three ways: a subjective intention to cause emotional distress, a substantial certainty that such distress would result, or reckless behavior leading to emotional distress. The majority (maj. opn., ante, at p. 906) deny plaintiffs a cause of action for IIED because they did not allege that defendants’ conduct “was directed primarily at them, was calculated to cause them severe emotional distress, or was done with knowledge of their presence and of a substantial certainty that they would suffer severe emotional injury.” Although defendants may have been motivated by profit rather than by a subjective desire to distress these plaintiffs, the trier of fact could still hold defendants liable on a reckless conduct theory. Recklessness may be found *908 from acts “of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.” (Prosser & Keeton, The Law of Torts (5th ed. 1984) § 34, p. 213.) IIED may be distinguished from negligent infliction of emotional distress (NIED) because recklessness requires a higher degree of fault than simple negligence. The majority acknowledge (maj. opn., ante, at p. 905) that IIED may be shown from conduct undertaken with knowledge of the likelihood that the plaintiff will suffer emotional distress. If defendants in this emotionally charged occupation intentionally mutilated bodies and comingled remains, they necessarily realized that their conduct would cause the decedents’ loved ones severe emotional distress^ (See Golston v. Lincoln Cemetery, Inc. (Mo.Ct.App. 1978) 573 S.W.2d 700, 704 .) The limits that the majority seek to place on the tort of IIED are, in this context, unjustified. To require that plaintiffs be present at the scene of the outrageous conduct is unrealistic. It will be a rare case indeed in which a funeral home mutilates a decedent’s body in the presence of the grieving family or displays the mutilated body to them. The majority thus effectively limit a plaintiff’s recourse in cases involving this type of reprehensible conduct to the lesser tort of NIED. Further, the majority’s requirement that defendants consciously direct outrageous conduct at plaintiffs makes the “recklessness” prong indistinguishable from the “subjective intent” prong. Other states’ courts have found a cause of action for IIED under similar circumstances. For example, in Whitehair v. Highland Memory Gardens, Inc. (W.Va. 1985) 327 S.E.2d 438,440 [ 53 A.L.R.4th 383 ], the court held that the plaintiff could state a cause of action when the defendant mishandled the bodies of her sister, two aunts and a cousin during relocation of its cemetery. In Scarpaci v. Milwaukee County (1980) 96 Wis.2d 663 [ 292 N.W.2d 816, 820 , 18 A.L.R.4th 829 ], the court held that parents who alleged that the county wrongfully performed an autopsy on their son could state a claim for intentional interference with the right to bury their child. And in Carney v. Knollwood Cemetery Ass’n (1986) 33 Ohio App.3d 31 [ 514 N.E.2d 430, 435 ], the court held that the plaintiffs, who learned by a television broadcast that the grave of their ancestor had been disturbed, could state a claim for IIED. A Florida appellate court recently explained that in cases in which the defendant’s outrageous conduct is directed to a third person, the emotional distress felt by the victim’s close relatives on learning of the acts is not actionable unless they observed the conduct and the conduct was directed at them; however, “unique considerations” apply in cases involving dead bodies or pictures of dead bodies. (Williams v. City of Minneola (Fla. Dist. *909 Ct. App. 1991) 575 So.2d 683, 694 .) The court held that the mother and sister of a decedent could state a cause of action for outrageous infliction of emotional distress by reckless conduct based on the defendants’ exhibition of a videotape of the decedent’s autopsy, even though they were not present at the display. It reasoned, “One who behaves outrageously with regard to pictures of a dead body can be presumed to know that severe emotional distress will be inflicted thereby on those who were closely related to the deceased, should those survivors become aware of the tort-feasor’s behavior.” (Id. at p. 693.) The cases cited by the majority do not apply to the present situation. Ochoa v. Superior Court (1985) 39 Cal.3d 159 [ 216 Cal.Rptr. 661 , 703 P.2d 1 ], held that the plaintiffs, parents of a minor who died while confined in a juvenile facility, could not state a claim for IIED based on the defendants’ failure to provide or permit them to provide needed medical treatment for their teenage son; we reasoned that the defendants’ acts were directed at the child, not the parents. One obvious fact, however, readily distinguishes the case: in Ochoa the defendants’ outrageous conduct was directed at a living person; by contrast, the only persons who could be hurt by defendants’ outrageous conduct in the present case are the decedents’ survivors. As the majority note, public policy considerations limit the right of a bystander to recover damages for the emotional distress suffered as a result of witnessing negligent conduct that causes physical injury to a third person: “If any and all bystanders who witnessed the injury-causing event were permitted to recover for ensuing emotional distress, the defendant’s liability could be out of all proportion to the degree of fault.” (Maj. opn., ante, at p. 885.) The scope of liability for intentional infliction of emotional distress is not, however, limited by the same public policy dictates. As the Court of Appeal stated in this case, “an intentional wrongdoer is liable for a broad range of the effects of intentional acts. . . . Avoidance of liability out of all proportion to a defendant’s negligence is not a concern when an intentional tort is alleged. As a society, we seek to punish the intentional wrongdoer and deter such conduct by others.” Further, I can find no public policy reason to limit the class of potential plaintiffs who may sue for IIED to family members. A longtime business associate should be allowed to present a case for TTF.D after a preliminary showing that he or she had a close relationship with the decedent. Proximate causation principles such as foreseeability do not belong in the analysis of an intentional tort. Of course, each plaintiff will have to prove all the elements *910 of his or her case. I would merely hold that they should be permitted to so attempt. Of course, exceptions to this general rule may arise. A close family member who is out of the country at the timé of the decedent’s death or who is in the hospital and not strong enough to hear the news may, in my view, be included in the plaintiff class. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9613421. Public record. Not legal advice.