IN THE SUPREME COURT OF IOWA 

No. 69 / 06–1140 

Filed September 12, 2008 

MARILYN ELAINE OVERTURFF, 

 Appellant, 

vs. 

RADDATZ FUNERAL SERVICES, INC., 

d/b/a CALDWELL RADDATZ FUNERAL HOME & CREMATORY, 

 Appellee. 

 Appeal from the Iowa District Court for Polk County, Eliza J. 

Ovrom, Judge. 

A widow appeals from the summary judgment entered in favor of a 

funeral home on her claim for negligent infliction of emotional distress. 

AFFIRMED. 

 Linda Channon Murphy of the Law Office of Linda Channon 

Murphy, P.L.C., Des Moines, for appellant. 

Michael S. Jones of Patterson Law Firm, L.L.P., Des Moines, for 

appellee. 
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BAKER, Justice. 

This appeal arises from the final disposition of the remains of Jack 

Burke Overturff who died in December 2003. Jack’s widow, Marilyn 

Elaine Overturff, appeals from a summary judgment entered in favor of 

Raddatz Funeral Services, Inc. on her claim for negligent infliction of 

emotional distress. She contends that a cause of action against a funeral 

home for negligent infliction of emotional distress may arise out of the 

funeral home’s breach of a duty imposed by the statutes and rules that 

regulate Iowa’s funeral service industry. Because there was no violation 

of the regulation in place at the time of Jack’s death and cremation, the 

regulation cannot be relied upon to establish a duty. We therefore affirm 

the district court judgment. 

I. Background Facts and Proceedings. 

 Jack and Marilyn were married on September 15, 1988. Both had 

been previously married. Jack had three sons from a previous marriage, 

Paul, Vane, and Clyde Overturff. In October 1995, Jack and Marilyn 

purchased adjoining burial spaces at Highland Memory Gardens 

Cemetery. 

In March 2003, Jack was diagnosed with cancer. On August 4, he 

was admitted to the hospital. After he was released later that month, he 

went to the home of a friend, where he lived until his final hospitalization 

in December. On August 27 and on September 3, Jack executed durable 

power of attorney documents, appointing Vane as his attorney in fact for 

health care decisions.

 On September 10, Jack filed a petition for dissolution of his 

marriage with Marilyn. On October 7, he filed a motion to waive the 90-

day waiting period. Jack testified that he wanted to obtain the 

dissolution before his death so that he could dispose of his estate 
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without regard to Marilyn. The court, noting “substantial concerns 

regarding [Jack’s] competency,” denied the motion to waive the waiting 

period. 

 By December 20, Jack was gravely ill, and his daughter-in-law, 

Debbie Overturff, contacted Raddatz and spoke with Nathan Pottinger, a 

licensed funeral director and Raddatz employee. According to Pottinger, 

Debbie told him that Jack was divorced. Jack died at a hospice, the 

Taylor House, on December 21. He was still married to Marilyn. They 

were not legally separated. 

 On December 21, Pottinger met with Jack’s sons and obtained 

Jack’s body. According to Pottinger, the family told him Jack was 

divorced and that he had no wife. On December 22, James Raddatz met 

with Vane, Paul, and a female family member to complete the 

arrangements. Raddatz testified that the family told him Jack did not 

have a spouse. On the 22nd, Vane signed an authorization to cremate, 

which included the following provision: 

AUTHORITY OF REPRESENTATIVE: The REPRESENTATIVE 

warrants and represents to FUNERAL HOME that the 

REPRESENTATIVE is the person or the appointed agent of 

the person who by law has the paramount right to arrange 

and direct the disposition of the remains of the DECEDENT 

and that no other person(s) has a superior right over the 

right of the REPRESENTATIVE. 

Vane also signed a statement of funeral goods and services, which 

stated, “I hereby acknowledge that I have the legal right to arrange the 

final services for the deceased, and I authorize this funeral establishment 

to perform services . . . .” A vital statistics form on Caldwell-Raddatz 

letterhead lists Jack’s marital status as divorced. A “face sheet” from 

Iowa Methodist Medical Center, which Marilyn contends Pottinger 

retrieved, indicates Jack is married. 
 4

 Vane made arrangements for Jack’s body to be cremated. 

According to Pottinger and Raddatz, Jack’s sons did not communicate to 

them that Jack was still married until they picked up Jack’s ashes and 

urn. At that time they brought in a handwritten death certificate which 

listed Jack’s marital status as married. Clyde testified that the partially 

completed death certificate was presented to the funeral home employees 

prior to Jack’s body being cremated.1

 Marilyn learned that Jack had died when she went to the Taylor 

House on December 22. Although she saw the funeral announcement in 

the paper, she did not attend the funeral because she felt Jack deserved 

a respectable service and feared the funeral would become a “circus” 

were she in attendance. She did not try to see Jack’s body before the 

funeral. She did not learn that Jack’s body had been cremated until 

after the funeral. 

 On February 22, 2005, Marilyn filed a petition against several 

defendants, including Raddatz, for events and actions surrounding 

Jack’s last days, death, and cremation.2 In pertinent part, she alleged 

that Raddatz had a duty to determine her identity and to provide her 

with an opportunity to make decisions regarding disposition of Jack’s 

remains. She stated two causes of action against Raddatz: negligent 

infliction of emotional harm and negligent interference with a contractual 

 1 On summary judgment, we view the facts in the light most favorable to 

the nonmoving party. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 

565 (Iowa 2000). Therefore, for purposes of this appeal, we accept both that 

Pottinger retrieved the “face sheet” and that the death certificate was given to 

Raddatz prior to the cremation of Jack’s body. 

2 The other defendants were dismissed or entered into settlement 

agreements. 
 5

relationship.3 Raddatz filed a motion for summary judgment which the 

district court granted. Marilyn appeals. 

II. Scope of Review. 

We review a district court ruling on a motion for summary 

judgment for correction of errors at law. Rodda v. Vermeer Mfg., 734 

N.W.2d 480, 482 (Iowa 2007). 

Summary judgment is appropriate when there is no genuine 

issue of material fact and the moving party is entitled to 

judgment as a matter of law. The burden is on the moving 

party to establish there is no genuine issue of material fact, 

and the facts must be viewed in the light most favorable to 

the nonmoving party. 

Id. at 483 (citing McIlravy v. North River Ins. Co., 653 N.W.2d 323, 327–

28 (Iowa 2002)). 

 Because the existence of a duty under a given set of facts is a 

question of law for the court, it is properly resolvable by summary 

judgment. Kolbe v. State, 625 N.W.2d 721, 725 (Iowa 2001); see also 

Sankey v. Richenberger, 456 N.W.2d 206, 209 (Iowa 1990) (“An 

actionable duty is defined by the relationship between individuals; it is a 

legal obligation imposed upon one individual for the benefit of another 

person or particularized class of persons.”). 

III. Existence of Duty.

Marilyn contends that Raddatz had a duty to avoid causing her 

emotional harm. It is a well-established principle that, if a plaintiff has 

suffered no physical injury, she will ordinarily be denied recovery on a 

negligent infliction of emotional distress claim. Millington v. Kuba, 532 

N.W.2d 787, 792–93 (Iowa 1995). “An exception exists, however, where 

 3 While not conceding the point, Marilyn does not appeal the district 

court’s entry of summary judgment on her negligent-interference-with-acontractual-relationship claim. 
 6

the nature of the relationship between the parties is such that there 

arises a duty to exercise ordinary care to avoid causing emotional harm.”

Oswald v. LeGrand, 453 N.W.2d 634, 639 (Iowa 1990) (citing Niblo v. Parr 

Mfg., Inc., 445 N.W.2d 351, 354 (Iowa 1989)). 

Absent some physical injury to the plaintiff, emotional-distress 

damages are allowed only in a few situations where unique 

circumstances justify the imposition of such a duty on the defendant. 

Millington, 532 N.W.2d at 792–93 . We have recognized negligent 

infliction of emotional distress claims, absent some physical injury, “in 

the negligent performance of contractual services that carry with them 

deeply emotional responses in the event of breach,” such as the delivery 

of medical services incident to the birth of a child, “the transmission and 

delivery of telegrams announcing the death of a close relative, and 

services incident to a funeral and burial.” Oswald, 453 N.W.2d at 639 

(citing Meyer v. Nottger, 241 N.W.2d 911, 920 (Iowa 1976); Mentzer v. 

Western Union Tel. Co., 93 Iowa 752, 768–71, 62 N.W. 1, 5–6 (1895)). For 

example, we allowed recovery for emotional distress without physical 

injury where a telegraph company negligently failed to deliver a message 

regarding the plaintiff’s mother’s death. Mentzer, 93 Iowa at 768–71, 62 

N.W. at 5–6. “[I]t was reasoned that the telegraph company owed a duty 

of due care to the public . . . and that the enforcement of that duty, by 

allowance of damages, would force them to be more careful.” Niblo v. 

Parr Mfg., Inc., 445 N.W.2d 351, 355 (Iowa 1989) (citing Mentzer, 93 Iowa 

at 757–58, 771, 62 N.W. at 3, 7). In the telegraph case, allowing recovery 

in the absence of a physical injury was largely based on public policy 

considerations. Id.

This court has previously held that a plaintiff may recover damages 

“for mental distress, absent physical trauma, arising out of the breach of 
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a contract to perform funeral services.” Meyer, 241 N.W.2d at 921. 

“Although an emotional situation or relationship is necessarily present in 

cases where we have recognized a duty to avoid causing emotional harm, 

other factors must be present for a duty to avoid causing emotional harm 

to arise.” Millington, 532 N.W.2d at 793 (citation omitted). We have 

recognized “the injured party having a contract with the injurer” as one 

such factor. Id. (citing Oswald, 453 N.W.2d at 639). In this case, the 

plaintiff is unable to rely upon that factor for the creation of a duty due 

to the absence of a contract between Marilyn and Raddatz. 

We turn then to Marilyn’s contention that Iowa’s statutes and rules 

created a duty in Raddatz to avoid causing her emotional harm. Iowa 

has long accepted the proposition that the breach of a duty imposed by 

statute or regulation may result in liability. 

[I]t is well established that if a statute or regulation such as 

an OSHA standard provides a rule of conduct specifically 

designed for the safety and protection of a certain class of 

persons, and a person within that class receives injuries as a 

proximate result of a violation of the statute or regulation, 

the injuries “would be actionable, as . . . negligence per se.” 

To be actionable as such, however, “the harm for which the 

action is brought must be of the kind which the statute was 

intended to prevent; and the person injured, in order to 

recover, must be within the class which [the statute] was 

intended to protect.” 

Wiersgalla v. Garrett, 486 N.W.2d 290, 292 (Iowa 1992) (citations 

omitted). Once a plaintiff establishes that her injuries resulted from the 

defendant’s violation of such a statute, “there is in effect a presumption 

that the defendant has violated his legal duty to exercise due care.” Id. 

at 293. 

Marilyn asserts that Raddatz owed her a duty under the statutes 

and regulations governing funeral directors to allow her to dictate the 

appropriate disposal of Jack’s body. She further asserts that a breach of 
 8

that duty permits a cause of action. A prerequisite to her claim is a duty 

running to her from Raddatz. See Stennett Elevator, Inc. v. State, 430 

N.W.2d 122, 124 (Iowa 1988). She must show that she had the right to 

dictate the appropriate disposal of Jack’s body, i.e., that Raddatz had a 

duty to follow her dictates. 

According to the Iowa Administrative Code in effect in December 

2003, the persons authorized to make funeral arrangements and handle 

the final disposition of the decedent, in order of priority, are: 

1. The attorney-in-fact pursuant to a durable power of 

attorney for health care. 

2. The spouse of the decedent. 

3. The decedent’s surviving adult children. . . . 

Iowa Admin. Code r. 645—100.1 (2003). 

Although Raddatz did not contract with Vane because he held a 

durable power of attorney for health care, Vane was in fact the 

authorized person under the regulation to order the final disposition of 

Jack’s remains. Raddatz did not violate rule 645—100.1 by allowing 

Vane to make the funeral arrangements. Because there was no violation, 

Marilyn cannot rely on the regulation to establish “a presumption that 

[Raddatz] violated his legal duty to exercise due care.” Wiersgalla, 486 

N.W.2d at 293. Raddatz simply owed no duty to Marilyn. Vane had the 

authority under the regulations to determine the disposition of Jack’s 

remains. Without a duty to Marilyn, there can be no claim.4

 4 Because we do not need to reach the issue, we do not decide today 

whether a breach of the statute or regulations involving funeral directors gives 

rise to a cause of action for negligent infliction of emotional distress without 

physical injury.
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IV. Conclusion. 

We affirm the district court judgment in favor of Raddatz. There 

was no violation of rule 645—100.1. Therefore, the regulation cannot be 

relied upon to establish a duty in Raddatz toward Marilyn. Because 

Raddatz owed no duty to Marilyn either by contract or statute, summary 

judgment was appropriate. 

AFFIRMED. 

All justices concur except Appel, J., who takes no part.