IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 13, 2007 Session

ROBERT H. CRAWFORD, SR. ET AL. v. J. AVERY BRYAN FUNERAL

HOME, INC. ET AL.

Appeal from the Circuit Court for Hamilton County

No. 03C349 W. Neil Thomas, III, Judge

No. E2006-00987-COA-R3-CV Filed November 21, 2007

Charles D. Susano, Jr., J., concurring in part and dissenting in part.

The defendants’ filings in this case clearly establish that TeriCrawford does not have a cause

of action for intentional interference with the dead body of her brother, Robert H. Crawford. That

cause of action belonged to Mr. Crawford’s widow, to the exclusion of all others. Furthermore, in

my opinion, the record before us negates Ms. Crawford’s alleged causes of action against all

defendants except those asserted against the individuals and entities directly associated with the

operation of the Tri-State Crematory (hereinafter sometimes referred to as “the Tri-State

Defendants”). As to these latter individuals and entities, I believe the defendants’ filings fail to

negate Ms. Crawford’s three causes of action for (1) intentional, (2) reckless, and (3) negligent

infliction of mental distress. Therefore, I disagree with the majority’s conclusion that the trial court

was correct in dismissing Ms. Crawford’s complaint with respect to these “infliction of mental

distress” theories.

As particularly pertinent to my separate opinion, the complaint contains the following

allegations:

* * *

1. This action arises from the mishandling, abuse and desecration of

the bodies of the deceased loved ones of hundreds of citizens of

Tennessee, Georgia, Alabama and other states. . . .

* * *
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5. . . . [Teri] Crawford is the surviving sister of Robert H. Crawford,

Jr. [, one of the decedents whose remains were to be cremated by TriState Crematory]. . . .

* * *

11. . . . [Ray Marsh, Clara Marsh, T. Ray Brent Marsh and Rhames

LeShea March –] the Marsh Defendants [–] conducted business

without corporate protection, but as partners, joint venturers and joint

proprietors doing business as Tri-State Crematory, Tri-State

Crematory, Inc. and/or Marsh Vault & Grave, Inc., and/or Brent’s

Tents, all of which were not valid corporate entities subsequent to the

respective revocations of corporate charters by the State of Georgia

as hereinabove set forth, but were merely trade names, fictitious

names, or trade styles under which the Marsh Defendants jointly and

collectively owned and operated the Tri-State Crematory facility in

Noble, Georgia. The Marsh Defendants and Defendant Tri-State

Crematory will hereinafter be collectively referred to as [the Tri-State

Defendants].

 

* * *

26. Beginning at a date presently unknown, and continuing through

February 15, 2002, [the Tri-State Defendants] systematically and

commonly mishandled, desecrated, abused and commingled the

remains of the decedents in a manner offensive to human sensibilities

and/or expressly prohibited by law.

27. [The funeral home] returned what it represented to be the remains

of their loved ones to Plaintiffs.

28. The remains returned were not the true remains of Plaintiffs’

loved ones or where [sic] not properly cremated remains in

conformity to the lawful and professional standard of care for final

disposition of human remains, or there remains uncertainty whether

the deceased loved on[es were] ever actually cremated.

29. In light of this knowledge, Plaintiffs now know that their loved

ones’ remains were not cremated in accordance with the wishes of

Plaintiffs’ or under the terms of the agreement with [the funeral

home] but instead were subjected to [the Tri-State Defendants’]

unlawful and improper practices.
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30. Plaintiffs have all suffered and continue to suffer the predictable

and reasonably foreseeable emotional distress including anguish and

grief, upon learning of the treatment to which the remains of their

loved-ones were subjected by [the Tri-State Defendants and other

defendants].

* * *

33. Throughout [the relevant time period], [the Tri-State Defendants]

systematically and commonly mishandled, desecrated, abused, and

commingled the remains of the decedents in a manner offensive to

human sensibilities and/or expressly prohibited by law.

* * *

EIGHTH CAUSE OF ACTION

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

77. Plaintiffs re-allege and incorporate herein, as if set forth in full,

each and every allegation contained in the preceding paragraphs and

further allege:

78. The . . . conduct [of the Tri-State Defendants and other

defendants] directed toward Plaintiffs, as described herein, was

intentional, knowing, and/or reckless. It is so outrageous that it is not

tolerated by civilized society.

79. As a direct and proximate result of the . . . conduct [of the TriState Defendants and other defendants], Plaintiffs suffered serious

mental injuries and emotional distress that no reasonable person could

be expected to endure or adequately cope with.

80. In their conduct, the [Tri-State Defendants and other defendants]

acted intentionally, knowingly, with suppression, fraud and malice

and in reckless and conscious disregard of Plaintiffs’ rights. Plaintiffs

are, therefore, entitled to punitive and exemplary damages from . . .

the [Tri-State Defendants and other defendants] in such amount as

shall be necessary and appropriate to punish the [Tri-State Defendants

and other defendants] and to deter them and anyone else from ever

committing similar indecencies upon human remains.

NINTH CAUSE OF ACTION
Comment g. to § 868 recognizes that § 46 may have some applicability to cases involving the abuse of a dead

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body:

Under the rule stated in § 46 one who by extreme and outrageous conduct

intentionally or recklessly inflicts severe emotional distress upon another is subject

to liability for the emotional distress.

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NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

81. Plaintiffs re-allege and incorporate herein, as if set forth in full,

each and every allegation contained in the preceding paragraphs and

further allege:

82. At all material times, the [Tri-State Defendants and other

defendants] owed a duty to Plaintiffs to act with the ordinary care of

a reasonable person with respect to all aspects of the services

promised including, but not limited to, all phases of the cremation

process, including but not limited to the hiring, retention, training and

supervision of all agents, employees and representatives of the [TriState Defendants and other defendants], in connection with such

services and transactions, the management and administration of the

services and transaction, the association with other persons and

entities to accomplish the performance of such services, the

individual, proper and respectful performance of all steps of the

cremation process, and the ascertainment that all such services were

being fully and properly undertaken and performed.

83. The [Tri-State Defendants and other defendants] negligently and

carelessly failed to discharge these duties.

84. As a proximate cause of the . . . negligence [of the Tri-State

Defendants and other defendants], Plaintiffs have suffered serious and

severe mental injuries and emotional distress that no reasonable

person could be expected to endure or adequately cope with.

* * *

(Capitalization and underlining in original). As I understand these allegations, the causes of action

being asserted are not premised upon “the interference with a dead body” concept contained in

Restatement (Second) of Torts § 868 (1965) and the old case of Hill v. Travelers’ Ins. Co., 294 1

S.W. 1097 (Tenn. 1927), but rather upon the concept of outrageous conduct found in Restatement
See Restatement (Second) of Torts §§ 312, 313, 436, and 436A. 2

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(Second) of Torts § 46 and othersections oftheRestatement(Second) of Torts. Stated another way, 2

the “right” in “outrageous conduct” cases is the right to be free from the infliction of serious

emotional distress, see Restatement (Second) of Torts § 46, cmt. b., as opposed to the surviving

spouse’s right to be free from interference with her exclusive control of the deceased’s body. See

Restatement (Second) of Torts § 868, cmt. a. 

The concept of outrageous conduct was addressed in the relatively recent case of Doe v.

Roman Catholic Diocese of Nashville, 154 S.W.3d 22 (Tenn. 2005). In Doe, victims of child

molestation by a former priest brought suit against the Catholic diocese of which the priest

previously had been a member. Id. at 24, 28. The plaintiffs alleged that the diocese had been guilty

of reckless conduct in the nature of outrageous acts and omissions that ultimately inflicted emotional

harm on the plaintiffs. Id. at 30. The trial court granted the diocese summary judgment and the

Court of Appeals affirmed. Id. In our opinion, we held “that reckless infliction of emotional distress

must be based on conduct that was directed at the plaintiff.” Id. at 24. The Supreme Court disagreed

with our conclusion. It granted permission to appeal and reversed the lower courts. The High Court

stated that Doe presented a question of first impression. The Court held that “a claim for reckless

infliction of emotional distress need not be based upon conduct that was directed at a specific person

or that occurred in the presence of the plaintiff.” Id. at 43. As in Doe, the Tri-State Defendants had

no direct contact or relationship with Terry Crawford and the alleged outrageous conduct did not

occur in her presence.

In the course of its opinion, the Supreme Court in Doe stated the requirements for reckless

infliction of emotional distress:

Three elements are required: first, the conduct complained of must

have been reckless; second, the conduct must have been so

outrageous that it is not tolerated by civilized society; third, the

conduct complained of must have caused serious mental injury. In

order to mount a prima facie case, the plaintiff need not allege that the

defendant’s reckless misconduct has been directed at a specific

person or that it had occurred in the plaintiff’s presence.

Id. at 41 (citation omitted). The Court in Doe defined the concept of recklessness thusly:

Recklessness is a hybrid concept which resembles both negligence

and intent, yet which is distinct from both and can be reduced to

neither. “A person acts intentionally when it is the person’s

conscious objective or desire to engage in the conduct or cause the

result.” Although the reckless actor intends to act or not to act, the

reckless actor lacks the “conscious objective or desire” to engage in

harmful conduct or to cause a harmful result. (“[R]ecklessness and
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negligence are incompatible with desire orintention.”); (The reckless

actor “does not intentionally harm another, but he intentionally or

consciously runs a very serious risk with no good reason to do so.”).

Nevertheless, recklessness contains an awareness component similar

to intentional conduct which is not demanded of negligence. 

(Recklessness “entails a mental element that is not necessarily

required to establish gross negligence.”); (“The element of awareness

of risk . . . does distinguish between recklessness and negligence.”).

Further, although recklessness is typically a criterion for determining

whether punitive damages are warranted in negligence cases, claims

for reckless infliction of emotional distress lack an underlying

negligence claim. Therefore, a recklessness analysis is something

unique which differs from analyses based strictly on either intent or

negligence. Courts requiring the directed-at element generally have

failed to recognize and to address the unique qualities of recklessness.

Id. at 38. (citations omitted). In my opinion, the concepts embodied in these two quotes from Doe

fit the instant case like a glove.

Based upon the foregoing, I would hold that Teri Crawford has stated in her complaint a

cause of action against the Tri-State individuals and entities for reckless infliction of emotional

distress. I would also hold that the complaint before us is sufficient to state a cause of action against

the same defendants for intentional infliction of the same condition. Finally, I believe the plaintiff

has sufficiently alleged a cause of action for negligent infliction of emotional distress. I express no

opinion as to whether Ms. Crawford can prove the essential elements of any or all of her alleged

causes of action.

Accordingly, I concur in part and respectfully dissent in part.

_______________________________

CHARLES D. SUSANO, JR., JUDGE