If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

CARL HOSKIN, CYNTHIA ROBINSON, and FRANK HOSKIN,

Plaintiffs
and

AAROLIND HOSKIN,

Plaintiff

- Appellant UNPUBLISHED September 22, 2022

v No. 357265 Wayne County Circuit Court DETROIT MEDICAL CENTER, LC No. 19

- 015407

- NO

Defendant

- Appellee.

Before: G LEICHER

, C .J., and M ARKEY and P ATEL , JJ.

P ER C URIAM

.

Eight days after p laintiff ’s 1 father, Aaron Hoskin, checked himself out of defendant ’s hospital facility against medical advice, h e was found deceased . The Wayne County Medical
Examine r took possession of Hoskin’s body

. But Hoskin’s family did not learn of his death until
six weeks later

. Because of the delay, t h e state of the body’s deco mposition necessitated a closed

casket funeral

.

De fendant did not possess or control Hoskin’s body after he checked himself out of the hospital. I t was the medical examiner’s statutory duty to identify the body and notify Hoskin’s

next of kin. And plaintiff did not see her father’s body or suffer a physical injury. Accordingly, we

1 Fo ur plaintiffs

— Carl Hoskin, Cynthia Robinson, Frank Hoskin, and Aarolind Hoskin

— were listed as plaintiffs in the original complaint . However, plaintiff Aarolind Hoskin is the on ly plaintiff involved in this appeal. Accordingly, references to “plaintiff” refer to Aarolind Hoskin. References to “Hoskin” refer to the decedent, Aaron Hoskin. And because Carl and Frank have the same last name, they will be referenced by their first na mes.- 2

-

affirm the trial court’s order granting summary disposition to defendant on plaintiff’s claims for negligent interference with the right of burial and negligent inflictio n of emotional distress.

I. BACKGROUND

On October 24, 2018, Hoskin ’s brother, Frank, dr ove Hoskin to Detroit Receiving Hospital
to be evaluated . But Frank did not wait with Hoskin

. After presenting to the emergency room,
Hoskin declined to be admitted for treatment and left the hospital against medical advice. Frank received a call from the hospital informing him that his brother had left. Frank spent several hours
attempt ing to locate his broth er, but he was unsuccessful. Frank terminated his search and w aited
for Hoskin to contact him.

Eight days later, o n November 2, 2018, Hoskin ’s body was found on a sidewalk in Detroit

, Michigan

. The body was in rigor. The body and clothing were saturated with water. Because the body was found in a public place, t he Wayne County Medical Examiner was contacted to take possession of the body and investigate

. A medical wrist b and from defendant’s facility provided
Hoskin’s name and date of birth

. But there was no o ther form of identification that provided an address, p hone number

, or family information.

On November 3, 2018, a n autopsy was performed. In an effort to confirm Hoskin’s identification, the medical examiner’s office faxed a “Medical Records Release R equest ” to Detroit Receiving Hospital for Hoskin’s “Demogr aphic Information” on November 4, 2018. T he
medical examiner’s office faxed a nother record request to the hospital for Hoskin’s “Demographic

Information

—

Next of Kin Info” on November 20, 2018. And, on December 5, 2018, the medical
examiner’s office faxed a third record request to the h ospital for Hoskin’s “Demographic Information.” It is undisputed that the medical examiner’s office did not receive a respon se to any of the record requests.

Because Frank had not heard from Hoskin after the hospital informe d him that Hoskin left against medical advice, Frank contacted the medical examiner’s office on December 16, 2018, to inquire if Hoskin was there. The m edical ex aminer ’ s o ffice informed Frank that they had a body matching Hoskin ’ s description. On December 17, 2018, Frank and his brother

, Carl

, went to the
medical examiner ’ s office and identified Hoskin from a photograph that was taken before the
autopsy . Plaintiff learned of her father’s death after Frank and Carl identified him

. Plaintiff did not
see her f ather ’ s body after his death.

The state of decomposition of Hoskin’s body necessitated a closed

- casket funeral. Wayne County’s Deputy Chief Medical Examiner, Dr. Leigh Hlavaty, testified that a body is preserved the entire length of time that it is with in the possession and control of the medical examiner ’ s office. Dr. Hlavaty confirme d that proper refrigerat ion of a body will prevent the body from decaying. Notably, Dr. Hlavaty testifi ed:

It is the medical examiner [’s] role to identify the body and to try to find the next of kin. We can ask the police for assistance, but that falls within the medical examiner responsibilities.- 3

-

Hoskin’s three siblings and plaintiff filed a complaint contending that defendant was liable for negligent interference with the right of burial and negligent infliction of emotional distress

. D efendant filed a motion for summary disposition pursuant to MCR 2.116(C)( 5 ) , arguing that Hoskin’s three siblings did not have standing to pursue claim s. T he trial court granted the motion

, in part, and dismissed the siblings’ claims for negligent interference with the right of burial

. 2 But
the trial court denied the motion with regard to the siblings’ claims for negligent infliction of
emotional distress . D efendant also filed a motion for summary disposition pursuant to MCR 2.116(C)(8), asserting that plaintiff failed to state viable claims . The trial court d enied the motion and discovery commenced. Following discovery, defendant moved for summary dispositio n pursuant to MCR 2.116(C) (8) and (10)

. After affording plaintiff additional time to conduct discovery and granting her leave to file an amended complaint, 3 t he trial court granted defendant’s

motion. P laintiff moved for reconsideration, which the trial court denied. This appeal followed.

II. STANDARD OF REVI EW

“We review de novo a trial court’s decision on a motion for summary disposition. ” El

Khalil v Oakwood Healthcare, Inc , 504 Mich 152, 159; 934 NW2d 665 (2019). “ Where a motion for summary disposition is brought under both MCR 2.116(C)(8) and (C)(10), but the parties and the trial court relied on matters outside the pleadings, as is the case here, MCR 2.116(C)(10) is the appropriate basis for review. ” Silberstein v Pro

- Gol f of America, Inc

, 278 Mich App 446, 457; 750 NW2d 615 (2008).

A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Woodring v Phoenix Ins Co, 325 Mich App 108, 113; 923 NW2d 607 (2018). W e consider all evidence submi tted by the parties in the light most favorable to the

non

- moving party

. El

- Khalil , 504 Mich at 160 . Summary disposition under MCR 2.116(C)(10) is only appropriate when there is no genuine issue of material fact. Id. “A genuine issue of material

fact exist s when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” Zaher v Miotke , 300 Mich App 132,
139

- 140; 832 NW2d 266 (2013).

Whether a defendant owes a duty to a plaintif f to avoid negligent conduct is a question of
law that we review de novo. Dyer v Trachtman , 470 Mich 45, 49 ; 679 NW2d 311 (2004)

.

I II . NEGLIGENT INTERFER ENCE WITH RIGHT OF B URIAL

Plaintiff argues that she has a viable claim against defendant for negligent interference with the right of burial of her father

. We disagree.

A deceased person’s next of kin does not have a property right to the decedent’s body. Deeg v Detroit , 345 Mich 371, 375

- 376; 76 NW2d 16 (1956). But “ Michigan jurisprudence

2 None of the three siblings have appealed the trial court’s order.

3 Plaintiff was the only plaintiff included in the first amended complaint and the siblings’ claims

were withdrawn

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recognizes a common law cause of action on behalf of the person or persons entitled to the possession, control, or burial of a dead body for the tort of interference with the right of burial of a deceased person without mutilation. ” Dampier v Wayne Co , 23 3 Mich App 714, 728; 592 NW2d 809 (1999) (quotation marks and citation omitted). “[I] t is an actionable wrong for another to interfere with that right by withholding the body or mutilating it in any way. ” Deeg , 345 Mich at
376 (quotation marks and citation s omitted)

. “The recovery i n such cases is not for the damage to the corpse as property , but damage to the next of kin by infringement of [her] right to have the body delivered to [her] for burial

. . . . ” Keyes v Konkel , 119 Mich 550, 551; 78 NW 649 (1899 ).

In this case, it is undisputed that p laintiff had the power to control the final disposition of
her father’s remains . The pivotal question is whether defendant owed plaintiff a duty. To succeed on a negligence claim, a plaintiff must demonstrate that “ (1) the defendant owed the plaintiff a legal duty, (2) the defendant breache d the legal duty, (3) the plaintiff suffered damages, and (4)
the defendant ’ s breach was a proximate cause of the plaintiff ’ s damages. ” Hill v Sears, Roebuck and Co, 492 Mich 651, 660; 822 NW2d 190 (2012) (quotation marks and citation omitted)

. “It is axiomatic that there can be no tort liability unless [a] defendant[ ] owed a duty to [a] plaintiff. ” Id

. (quotation marks and citation s omitted). Duty may arise from a statute, a contr actual relationship,

or by application of the common law. Id. at 660

- 661.

Plaintiff does not contend that there was a contractual relationship between the parties. Nor has plaintiff identified a statutory duty owed by defendant as Hoskin’s prior medical treater

. I n circumstances such as this

, where an unknown decedent is found in public

, it is the county medical

examiner ’s duty to take possession and control of the body. MCL 52.205(1). T hat statutory duty requires t he medical examiner to ascertain the identity of a decedent and notify the next of kin of
the decedent’s death :

Except as otherwise provided in this subsection, the county medical examiner shall ascertain the identity of the decedent and immediately and as compassionately as

pos sible notify the next of kin of the decedent ’ s death and the location of the body. The notification described in this subsection is not required if a person from the state police, a county sheriff department, a township police department, or a municipal p olice department states to the county medical examiner that the notification has already occurred . [MCL 52.205(4).]

The m edical e xaminer was acting on his statutory duty to identify Hoskin when a representative of his office requested “demographic informa tion” from defendant’s facility. But

the deputy medical examiner conceded that this was not the exclusive means available to identify

a decedent or locate next of kin . And the mere fact that the medical examiner requested demographic information from defen dant does not transfer the statutory duty to identify the
decedent to defendant.

Plaintiff maintains that defendant’s duty arises under common law , stating simply that
defendant “ had a duty to not interfere with [plaintiff’s] right to the burial of her father ” and that

“ the harm caused by [defendant ’s ] failure to identify the next of kin was foreseeable

. ” The determination of whether a legal duty exists under common law- 5

-

is a question of whether the relationship between the ac tor and the plaintiff gives rise to any legal obligation on the actor ’ s part to act for the benefit of the subsequently injured person. The ultimate inquiry in determining whether a legal duty should be imposed is whether the social benefits of imposing a duty outweigh the social costs of imposing a duty. Factors relevant to the determination whether a legal duty exists include the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented. We have recognized, however, that the most important factor to be considered in this analysis is the relationship of the parties and also that there can be no duty imposed when
the harm is not foreseeable. In other words, before a duty can be imposed, the re must be a relationship between the parties and the harm must have been foreseeable. If either of these two factors is lacking, then it is unnecessary to consider any of the remaining factors. [ Hill, 492 Mich at 661 ( cleaned up ). ]

Plaintiff has not offe red any evidence or argument establishing that there was a legal relationship between the parties. Plaintiff and defendant never directly interacted. P laintiff d oes not allege that s he had a special relationship with defendant, nor that there was a special relationship between defendant and Hoskin that would give rise to a duty

. The physician

- patient relationship between defendant and Hoskin ended eight days before his death when he left defendant’s medical facility against medical advice. And plaintiff con cedes that defendant did not have possession or control of Hoskin’s body. If there i s no legal relationship between the parties, a duty cannot be imposed. In re Certified Question from Fourteenth Dist Court of Appeals of

Texas

, 479 Mich 498, 508; 740 NW2d 206 (2007). I f there is no relationship, it is unnecessary to
consider any of the other factors to determine whether a legal duty exists

. Id. at 507.

Our Supreme Court reached a similar conclusion i n Doxtator v Chicago & West Michigan

R Co , 120 Mich 596 , 601 ; 79 NW 922 (1899) . In Doxtator , the plaintiff ’s husband sustained serious injuries while working for the defendant railroad company. Id . at 597

- 598. He was transported to a hospital where the defendant’s doctor amputated hi s lower limbs

, but the plaintiff’s husband did not survive his injuries

. Id. at 598

- 599 . A hospital employee cremated the limbs. Id. at 599. The widow alleged that the railroad company “ deprived [her] of the right to give the remains of her
deceased husban d a Christian burial ” because it “negligently allowed the cremation of the
dissevered limbs.” Id. at 597, 599. The Supreme Court recognized “it is an actionable wrong for another to interfere with that right by withholding the body or mutilating it in any way. ” Id

. a t 597.
But the Court not ed that it was “ important

. . . to inquire just what duty the railroad company was under, and just how far it assumed control over the injured man ” to determine whether it can be
held liable. Id . at 599. Because the railroad company did not have any duty after an ambulance
was called and the railroad company ’s doctor d id not have any duty beyond performing the amputation , the Doxtator Court concluded that the plaintiff could not establish a cause of action against the railroad for the disposition of the dismembered limbs

. Id. at 600

- 601.

In this case, it is undisputed that defendant did not possess or control Hoskin’s body.

Plaintiff has failed to establish the existence of a re lationship that would give rise to a leg al obligat ion to plaintiff . In the absence of a relationship, a duty of care cannot be imposed on defendant. See Hill , 492 Mich at 669 ; In re Certified Question , 479 Mich at 507. Accordingly , the
trial court did not err in granting defendant’s motion for summary disposition regarding plaintiff’s claim for negligent interference with the right of burial.- 6

- V. NEGLIGENT INFLICT ION OF EMOTIONAL DIS TRESS

Plaintiff further argues that she has a valid claim for negligent infliction of emotional
di stress. We disa gree.

T here is no cause of action in Michigan that allows a plaintiff to recover damages simply because a defendant negligently caused emotional distress. See Duran v Detroit News, Inc , 200 Mich App 622, 629; 504 NW2d 715 (1993)

. “ Michigan recognizes the tort of negligent infliction of emotional distress only when a plaintiff witnesses negligent injury to a third party and suffers
mental disturbance as a result. ” Teadt v Lutheran Church Missouri Synod , 237 Mich App 567, 581 n 6; 603 NW2d 816 (1999) . See al so Taylor v Kurapati , 236 Mich App 315, 360; 600 NW2d 670 (1999).

Plaintiff concedes that she did not see her father’s decomposed body and acknowledges that she is not claiming damages based on a harm to a third person. But she contends that her claim
fo r negligent infliction of emotional distress is valid because it is premised on a theory of direct causation as recognized in Daley v LaCroix , 384 Mich 4, 12

- 13 ; 179 NW2d 390, 395 (1970)

. Plaintiff’s reliance on Daley is misplaced. In Daley , the Supreme Court considered whether the plaintiffs could pursue damages for physical illnesses arising from their fright where the
defendant ’ s negligence did not involve any actual physical contact with the plaintiff s. Id. at 6

- 7.

T he Daley Court adopte d the following principle: “[W]here a definite and objective physical injury is produced as a result of emotional distress proximately caused by defendant ’ s negligent conduct, the plaintiff in a properly pleaded and proved action may recover in damages for such physical consequences to himself notwithstanding the absence of any physical impact upon plaintiff at the
time of the mental shock.” Id. at 12

- 13. In other words, e motional distress may provide “the b asis for a negligence action only when a plaintiff can also establish physical manifestations of that
distress. ” Henry v Dow Chemical Co , 473 Mich 63, 79 & n 9; 701NW2d 684 (2005) (emphasis in original).

In this case, p laintiff testified that she has not been diagnosed with stress, anxiety, or any
other physical symptoms by a medical professional. More importantly, as discussed above, she is unable to establish a negligence claim against defendant. Accordingly, the trial court did not err by granting defendant’s motion for summary disposition with regard to plaintiff’s claim for negligent infliction of emotional distress.

Affirmed.

/s/ Elizabeth L. Gleicher /s/ Jane E. Markey
/s/ Sima G. Patel