### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE August 28, 2001 Session WANDA J. STEINBRUNNER v. TURNER FUNERAL HOME, INC., ET AL 

### .

Appeal from the Circuit Court for Hamilton County No. 98-C-0923 Jacqueline E. Schulten, Judge

FILED JANUARY 2, 2001

No. E2001-00014-COA-R3-CV

Six years after her husba

nd died, Wand a J. Steinbrunner sued the Chattanooga funeral home that handledhis burial and the medic al examin er that p erformed his autop sy. She mad e variou s claims basedupon theories of negligence, gros s negligence, and outrageous conduct. The trial cour t granted the funeral home and the medical examiner summary judgment. Steinbrunner appeals, challenging the gran t of summar

y judgment . We aff

irm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

C HARLE S D. S USANO , J R ., J., delivered the opinion of the court, in which H ERSHEL P. F RANK S and D. M ICHAEL S WINEY , JJ., joined. W. Troy McDougal, Collegedale, Tennessee, for the appellant, Wanda J. Steinbrunner.
David W. Noblit, and Erin

K. Brownfield, Chattanooga, Tennessee, for the appe llee, Turner Funeral Home, Inc. David W. Norton, Chattanooga, Tennessee, for the a ppellee, Frank King, M.D.
OPINION

I.
On May 6, 1998, Wanda J. Steinbrunner filed a complaint

in the trial court seeking damages for emotional distress she claims to have suffered as a result of the a ctions of Dr. Frank King, the medical examine

r (“the medical e

xaminer ” or “Dr . King”) , and Tur ner Fu neral H ome, Inc. (“the Funeral Home”). On July 15, 1999, Steinbrunn eramended her complaint, asserting claims of negligence per se , gross negligence, and outrageous conduct. The trial cour t granted the medical examiner’s motion for summary judgment. The court fo und that th e medical examiner’s actions
arose out of his r

esponsibi lities under T.C.A. § 38-7-112. The court concluded that he enjoys immunityfrom all of

Steinbrunner’s claims. The trial court also granted the Funeral Home’s motion1 The appellees stat e in their briefs that “[i ] t was onl y when Stei nbrunner be came invol ved in l it igation

regar ding her hus band’s credi t ca rd account s and when s he became aware that her hus band had a lif

e insurance policy paying out for acci dental deat h that St einbrunner became obsessed wit h the idea t

hat her husband had not die d of natural
cau ses.”

2 Steinbrunner spoke with Mr. Winters , the e mployee o f the medical exam iner’s offi ce who actuall y investi gated de ce de nt ’s de at

h o n Ma y 1 , 19 92 , an d t oo k t he ph ot og ra ph s i n the eme rg en cy r oo m.

-2- for summary judgment, finding thatthe one-year statute of limitations has expired for any cause of action arising out of the burial, disinterment, and reburial of the decede nt. In addition, the trial court concluded

that the facts do not establish outrageous conduct. The court also concluded that the facts before it conclu sively de

monstrate that all ne gligence

claims ar e without m

erit.

II.
On May 1, 1992, Alva F. Steinbrunner died suddenly. Due to the circumstances surrounding his death, an employee of the Hamilton County Medical Examiner's Offi ce investiga ted his de ath and took photographs of

the body in the eme

rgency r oom. Finding

no suspici ous circumstance s, the medical examiner released the body for bur ial without an autopsy. Mr. Steinbrunner was buried by the Funeral Home on May 4, 1992. On May 7, 199 2, the med ical exa miner issu ed a dea

th certifi cate listing t he cause

of death as hypertensive cardiovascular disease. Steinbrunner questioned the cause of death, claiming to be unaware that he r husband had cardiovascular problems. As a result, on May 12, 1992, at Ste inbrunne r's requ est , her hu sband’s body was disinterred by the Funeral Home and taken to the medical examiner who perf ormed a complete autopsy. He found advanced coronary arteriosclerosis. The dec edent wa s reinter ed by the F

uneral H ome on the

same day. On June 15, 19 92 , Steinbrunner learned of the autopsy results but took no immediate action with resp ect to the

m.
Five years following the au topsy, the plaintiff again began to question the cause of her husband's death. 1 After discovering that the medical examiner had photogra phs of her hus ban d taken short ly after his death, Steinbrunner requested a mee ting with the medical examiner to inquire furthe r about his death. 2 During the meeting on August 19, 1997, Steinbrunner and the medical examiner had a general discussion about the autopsy process, including that aspect of the process involving the removal of organs. The medical examine

r told Stein

brunner that somet

imes fune ral home s use filler material such as sawdust, newspapers or towels in bodies to ab sorb fluid s after organs are removedduring an autopsy. At this same meeting, during a discussion with Steinbrunner about the
cause of her hu sband's d

eath, the medical e

xaminer showed Ste

in brunner ele ven photographs of decede nt, including two photographs taken shortly after his death. Before showing the photographs to St einbrunne r, the medical examiner told Steinbrunner that the photographs are “ upsetting, and they’re going to have some fluid a nd –in s ome of the pictures, and that they– they’re not nice pictures to look at.” While looking at each of the photograp hs, Steinbrunner never informed the medical examiner she did not want to see any more pictures or that seeing them was upsetting her. At no time d

id Steinbr unner as k the medi cal exa miner to st

op showing

her the photograp

hs.-3-

Following the meeting with the medical examiner, Steinbrunner “fea red” that her husband’s body had been mistreated during his second burial and that the funera l home might

have filled his body with filler material after the autopsy. As a result, on March 10, 1998, at Steinbrunner’s request , decedent’s body was d

isinterr ed a sec ond tim e and tr ansporte d to Nashville for a forensi c examination. When the casket was opened, there was no identifica tion on the body, a portion of the forms in the casket had been left blank, and, according to the plaintiff, the decedent’s clothing did not match the gene ral desc ription of the cloth ing that she rememb ered selecting f or his bur ial.
Steinbrunner

sued bot h the medical examiner and the Funeral Home, alleging outrage ous conduct and gross negligence as to both defendants. She also charged the Funeral H ome with negligence per se , and simple negligence. As previously stated, the trial court granted the medical examiner and the Funeral Home summary judgment. This appeal followed.

III.
Steinbrunner

challen ges th e trial court’s grant of summary judgment. She raises the following questions :
Are there disputed material facts or doubt as to the conclusions to be drawn from undisputed material facts so as to render inappropri ate the trial cou rt’s gra nt of summa

ry judgme

nt to the de

fendant s: (a) as to the Funeral Home’s defense of t he statu te of limitations relative to the plaintiff’s claims arising out of the burial, disinterment and reburial of the plaintiff’s spouse; (b) as to th e plaintiff’s claims against the Funeral Home for negligence per

se , negligence, gross negligence, and outrageous conduct; (c) as to the p laintiff

’s claims for gros s neg ligence and outrageous conduct against Dr. King; and (d) as to Dr. Kin g’s affirmative defense of a bar based on the Governmental Tort Liability Act (“GTLA”)?

IV.

In deciding whether a grant of summar

y judgment

is approp riate, c ourts ar

e to dete rmine “if the pleading s, deposit

ions, answ ers to interrogatories, and admissions on file, together with the affida vits, if any, show that there is no genuine issue as to any material fact a nd that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. Courts “must take the stronges tlegitimate view of the e vidence in favor of the nonmov

ing party , allow all reason able-4-

inferences in favor of that party, and discard all countervailing evidence.” Byrd v. Ha ll , 847 S.W.2d 208, 210-11 (Tenn. 1993).
The party seeking summary judgment has the initial burden of d emonstra ti ng that the

re is
no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Id. at 215. Once the moving party satisfies its bu rden, the burden shifts to the nonmoving party to show that there is a genuine issue of material fact requiring submission of the case to a trier of fact. Id.

Since summary judgment p resents a pure qu estion of law, our review i s de novo with no presumption of correctness as to the trial co urt’s ju dgment. Gonzales v. Alman Constr. Co. , 857 S.W.2d 42, 44 (Tenn. Ct. App. 1993).

V.

A.
The trial court held that “the one year statute of limitations has expired for any cause of action arising out of the burial, disinterment and reburial of Plaintiff’s decedent.”Steinbrunner claims that none of her causes of action are ba rred by the one-year statute of limitations for personal injury actions because, based on the discovery rule, a period of limitati ons does n ot begin to run until
a person isinjured, and she c laims she w as not inju red until h

er meeting with Dr . King on A ugust 19, 1997. Since her complaint was filed on May 6, 1998, she argues that it falls within the one-year limitations period.

The Funeral Hom e makes a number of arguments on appeal. It asser ts that the statute of limitations for Steinbrunner’s claims expired befo re she filed her comp laint. In s upport of this assertion, the Funeral Hom e argues the well-established principle that under the discover y rule, a statute of limitations is tolled only until an injury o ccurs or is disco vered, o r until a r easonab le person exercising due diligence should have discovered an injury or legal claim. Foster v. H arris , 633 S.W.2d 304 , 305 (Te nn. 1982) . Based on

this principle , the Fune

ral Home argues t hat if Steinbrunner

had a ca use of action, she s hould

have kno wn about it in May, 1992. Accordingly, the Funeral Home argues, her cause of a ction accrued in 1992 and expired in 1993. The applicable statute of limitations for actions involving personal injury is one year from the time the cause of action accrues. T.C.A. §28-3- 104(a)(1) (2000). In order to determine when a
cause of action accrues, it is ne c essary to apply the discovery rule. John Kohl & Co. P.C. v. Dearborn & Ewing , 977 S.W.2d 528, 532 (Tenn. 1998). “Under this rule, a cause of action accrues when the plain

tiff know s or in the

exerci se of re asonable

care and diligence should know that an injury has been

sustaine d as a re sult of wr ongful or torti ous cond uct by the defendant.” Id. The discovery rule serves as a shield to a limitations defense only when the plaintiff doe s not discover and could not have reasonably discovered that he or she had a cause of action. Woods v. SherwinWilliams Co. , 666 S.W.2 d 77, 80 (T enn. Ct. Ap p. 1983). It does no t allow the plaintiff to wait unt

il he or she knows all of the injurious effects or consequenc es of the tortious act. Id

.-5-

In 1998, foll owing her

convers ation with

Dr. King in 1997, Steinbrunner had her husband’s body exhumed a

second time in order

to see if f

iller had been pla ced in his body. It w as not unti l the second disinterment that she actually discovered the actions of the F uneral Ho me which, according to her, provide a basis for her personal injury claims. However, assuming that she learned of actiona ble condu ct in the 1 997-1998 time fra me, the f acts bef ore us fa il to establi sh that she c ould nothave learned of these matters at the time of the f irst disinterment in 1992 if she had exercised “reaso nable

care and diligence.” See 977 S.W.2d at 532. If

the Funer

al Home br

eached a duty to Steinbrunner, the breach occurred no later than May 12, 199 2, during the first disinterment of the decede nt. Applying the discovery rule, we find that Steinbrunner should have been placed on notice of the predicate fac ts in 1 992. The actions upon which Steinbrunner bases her claims arose in or about May, 1992 . This being the cas e, she wa s req uired to file suit no later than May, 1993. Steinbrunner did not

file suit u

ntil May 6, 1998. As a

result, we agree with the trial court that any injury arising from the burial, disinterment, and reburial of decedent is barred by the one-yea r statute of limitations.

B.

1.

As to Steinbrunner’s claim of outrageous conduct/intentional infliction of emotiona l distress against the Funeral Home, the trial court found that Steinbrunner “failed to sufficiently support her
cause of actio n.” The p laintiff argues t hat th e Funeral Home committed outrageous conduct that resultedin mistreatment of the decedent’s body when in 1998, the F uneral Home did not have a record showing th at dece dent had a ctually b een reburied in 1 992; when in 1997, the Funeral Home failedto provide w

ritten ve rificat ion of how

the dece dent’s bo dy was tre ated dur ing his disinterment in 1992; when, during the second disinterment, it was discovered that the memorial record was not placed in the vial at the end of the casket, and a portion of the rec ord in the casket was not completed; and because decedent’s bo dy appeare d to be dre ssed in cl othing dif ferent from those provided for his bu

rial. Outrageous conduct and intentional infliction of emotional distress are different names for the same cause of action. Bain v. Well s , 936 S.W.2d 618, 622 n.3 (Tenn. 1997). Under Tennessee law, there are three elements nec e ssary for a claim of outrageous conduct: “(1) the conduct complained of must be intentional or reckless; (2) the conduct must be so outrageous that it is not toleratedby civilized society; and (3) the cond uct compl ained of must result in serious mental injury.” Id. The legal principles involving the tort of outrageous conduct are set forth in Alexander v. Inman , 825 S.W.2d 102 (Tenn. Ct. App. 1991):

The Tenness ee Supre

me Court f

i rst recognized the tort of outrageous conduct in Med lin v. Allied Inv. Co. , 217 Tenn. 469, 478-79, 398 S.W.2d 270, 274 (1966).... Establishing a

test or legal standard for

determining whether particular unseemly

conduct i s so intoler

able as to be tortious-6- has proved to be dif

ficult. Bryan v. Ca

mpbell , 720 S.W.2d 62, 64 (Tenn. Ct. App. 1986). However, the test often used by our courts is the o ne found in Restatement (Second) of Torts § 46 c omment d (1 964) whic h states in part:
The cases thus far decided have fou nd liabilit y only where the defendant’s conduct has been extreme and ou trage ous. It has not been enough that the defendant has acted w ith an intentw hich is tortious or even criminal, or tha t he has intended to inflict emotional distr ess, or even that his conduct has bee n characterized

by “malice,” or a degr ee of aggravation which would en t itle the plaintiff to punitive damages for another tort. Lia bility has been found

o nly where the conduct has been so out rageou s, as to go b eyond all pos s ible bounds of decency, and to be regarded as atrocious, a nd utterly

intolera ble in a civilized community. Generally, the case is one in which the recitationof the facts to an averagemember o f the com mu nit y would
arouse his resent me nt against the actor, and lead him to exclaim, “Outrageous!”
Id. at 104.

This Court has found certain conduct to be outrageous. In Johnson v. Woman’s Hospital , 527 S.W.2d 133 (Tenn. Ct. App. 1975), a mother sued the hospital for ou trageou s c onduct in connection with the conduct of a staff member following the death of her infant child. Id. at 135. Shortlyafter her child’s death, when the mother inquired about the treatment of her child’s body, a hospital employee showed the mother a jar of formaldehyde containing the body. Id. at 136. Th

is Courtconcluded that the hospital employee’s co nduct w as outrageous. Id. at 140. Simi larly, in Dunbar v. Strimas , 632 S.W.2d 558 (Tenn. Ct. App. 1981), a medical examiner who was aware tha t a woman ha

d experi enced nervous or

mental pr oblems in the past, errone ously informed her that her daughter’s death

was not du e to natur

al cause s, but the r

esult of sexual assault and suffocation. Id. at 559-60. Once again, this Court found that a cause of action for outra geous conduct existed. Id. at 562. Finally, in Dunn v. Moto Photo, Inc., 828 S.W.2d 747 (Tenn. Ct. App. 1991), a woman was told by an employe e at a photo store that he was unable to develop her pictures. Id. at 749. In reality, the employee developed and kept the partially nude photos of the woman and shared them withanother customer who knew the woman. Id. This Court held that the employee’s conduct was outrageous. Id. at 753-54.-7-

We agree with the tri al court ’s concl usion that t he un disputed material facts do not show outrageous conduct on the part of the Funeral Home. First, ba se d on the parameters of the aforementioned

cases, and the principle

that outra

geous co nduct is c onduct wh ich is soextreme as to go beyond the pale of decency, the evidence before the Court does not rise to such a level. Second, there is no evide nce thatthe Funer al Home a

cted inte ntionally o

r reckl essly in a

ny dealin gs with Steinbrunner. In 1998, the Funeral Home did not have a r ecord showing tha

t decede nt was ac tually reburied in 1992. Even though, according to T.C.A. § 68-3-510(a) (Supp. 2001), a funer al home is supposed to keep a record of the date, place, and manner of final disposition, there is no evidence that the Funeral Home intentionally or reckle ssly faile d to keep this record. Furthermore, Tennessee law does not require a funeral home to keep a detailed record of how a body is tre ated during disinterm ent; nor is there any requirement that a memorial recor d be placed

in a special vial inside the casket. Lastly, even though Steinbrunner claims that decedent was dressed in clothing different from that in which he was originally buried, decedent was reb uried in a

suit from a

clothier in Ohio
w here, according to Steinbrunner’s own testimony, decedent had purcha sed suits in the past

. Because Steinbrunner failed

to establish that the Funeral Home’s conduct w as intenti onal or r eckless and “so outra

geous as t

o not be tolerated by civil society,” see Bain , 936 S.W.2d at 622, St einbrunner

has failed to satisfy two of the three elements of a ca use of action for outrageou s conduct. The Funeral Home was entitled to summary judgment on this issue.

2.
The trial cour t found th at Steinbrunner’s complaint “fail[ed] to state a claim upon which relief [could] be granted as to [Dr.] King.” More specifically, the court

found that Dr. King’s actions
arose out of his responsibilities as medical examiner. Furthermore, the court found that the evidence presented by Steinbrunner demonstrated that Dr. King acted in good faith in performing the medical examination and thus enjoys absolute immunity from the plaintiff’s claims pursuant to T.C.A. § 38- 7-112 (1997).
Steinbrunner

argues that T.C.A. § 3 8-7-1 12 does not shelter Dr. King because, so the argument goes, her injuries are not the result of Dr. King’s performance of a medical examination
or autopsy of her husband, but were caused by Dr. King’s actions on August 19, 1997, in discussing the autopsy and showing her the photographs of the decedent. Steinbr unner argues that the appr opriate

sta tute governing Dr. King’s immunity is T.C.A. § 29-20-310(c) (Supp. 2001), a part of the Gove rnmenta l Tort Lia bility Act, which gr

ants a gov ernment

employee

immunity fr

om suit for acts or omissions committed within the scope of employment, u nless the act or om ission is willful, malicious , criminal, or performed for financial gain. Steinbrunner alleges that Dr. King’s immunitywas lost because he committed acts of gross negligence and outrage ous condu ct, and both of these causes o f action , if prove n, include elementsof willfulness and /or malic iousness.
Stei nbrunner

claims that Dr. King committed outrageous conduct during the meeting o n August 19, 1997, w

hen he tol d her tha

t sawdust, newspap ers, and rags ar e sometime s used to f

ill a body cavity, and he showed her the emergency room photographs of her husband’s body. As to the photogra phs, Steinbrunner admits that Dr. King gave her a general wa rning about the nature of

the photographs before

showing them to her ; howeve r, she cl aims that h

e sh ould have g iven her an-8-

additional warning before showing he

r the last two photog

raphs. Lastly, Steinbrunner insists that Dr. King’s conduct was outrageous because he ha d no duty to show her the photographs of her husband o

r descr ibe how f uneral h omes fill b ody cavit ies.

Dr. King’s actions do not rise to the level of outrageous conduct so as to remove the medical examiner’s immunity from sui t under T.C.A. § 29-20-310(c). First, the meeting on August 19, 1997, was the first and only encounter Steinbrunner had with Dr. King, and Steinbrunner asked for the meeting to discuss and contest the results of her husband’s autopsy. Sec ond, as Steinbrunner testified in her deposition, she had spoke n to a former employee of Dr. King’s office and was aware that Dr. King h ad photog

raphs of her husba

nd’s b ody that were taken after his death. Third, Steinbrunner

testified that she asked Dr. King questions about the autopsy procedure, removal and disposal of organ s, and h ow a body c avity is re filled af ter orga ns are r emoved. I

n respons e to Steinbrunner’s questions, Dr. King explained the autopsy process and told Steinbrunner that some funeral homes use filler such as towels and sawdust. It is undisputed, ho wever, that Dr. K ing did nottell Steinbrunner that the Funeral Home had used that type of filler or that this filler had actually been placed in decedent’s body.

As for the photo graphs, S teinbrunner admits that Dr. King warned her about them befor e showing her the first picture. Dr. King testified that he showed her the pictu res to help illustra

te how he reached his conclusion about decedent’s cause of dea th, and he tho

ught that h

is warnin g would be sufficient to cover

all eleven pictures. Steinbrunner testified that she never told Dr. King before seeing the photographs that she did not want to see them or that seeing them would upset her. She also never asked

him to stop showing her the pictures at any time during the meeting. Additionally, Steinbrun ner lef t Dr. King ’s offic e with the photogra phs and ma

de copie s at Kinko’ s.
There is nothing in the record that suggests, in any way, that Dr. King’s conduct w as legal ly outrage ous. Dr. King w as simply tr ying to add

ress Steinbrunner’s questions regarding the autopsy. It was rea sonable

for Dr. King to conclude that a person who come s to his off

ice aski ng very sp ecific questions about an autopsy and o rgan r emoval could be expected to handle specific a nswers illuminated by graph

ic photos. Yet, Dr. King was concerned enough about Steinbrunner’s feelings to warn her before showing her any photographs. Subsequent to the warning, Dr. King was given
no indication by Steinbrunn er that se eing the photographs would be emotionally upsetting. Furthermore, Steinbrun

ner neve r to ld Dr. King, during the conversation or while viewing the photogra phs, that the ma

te ri al was upsetting. Finally, Steinbrunner’s own deposition testimony establishes an absence of outrageous conduct whe n she stated that

she could not identify anything that Dr. King did that she thought reflected an intent to cause her any physical, mental or emotional pain, dist ress or a gony othe r than he was in a h

urry. Ste inbrunne r’s claim is without m

erit.

C.
Steinbrunner

argues that the Funeral Home was negligent because it owed her a duty to treat decedent’s body with respect and it breached that duty by “not dressing the body in the proper clothing, not maintaining the appropriate paperwork, and not iden t ifying the body.” The Funeral Homeargues that

Steinbrunner failed to establish either a duty owed to her by the Funeral Home or-9-

the standard of care required in f ulfilling th at duty. As a result, the Funeral Home argues that Steinbrunner failed to establish a prima facie case of negligence.

In response to the allegation that the Funer

al Home negligen tly faile d to dress decede

nt in the proper clothing, the Funeral Home asserts that decedent’s body was p roperly clothed i n a single breasted two-button suit jacket purchased from a store in Ohio where Steinbrunner t estified her husband purchas ed some of his clothin g. The Fune

ral Home also cla ims that it was not negligent in failing to maintain the proper paperwork in 1992 beca use it kep t all of the records required by Tennessee law at that time. Furthermore, the Fune ral Home asserts t hat it wasnot neglig ent in failing to attach a permanent identification to the body in 1992 because T.C.A. § 62-5-313(d)(1) (Supp. 2001), which requires a funeral home to attach permanent identification to a body, was not addedto the statute until 1995. As such, the Funeral Home did not have a duty to attach permanent identification to decedent in 1992.

“No claim for negligence can succee d in the absence of any one of the following elements : (1) a duty of care owed by the defenda nt to the plaintiff; (2) conduct falling b elow the appli cable standardof care amounting to a breach of that duty; (3) a n injury or

loss; (4) c ausation

in fact; and (5) proximate, or legal cause.” Bradshaw v. Daniel , 854 S.W.2d 865, 869 ( Tenn. 199 3); see also McClenah an v. Cooley , 806 S.W.2 d 767, 774 (Tenn. 199 1); Lindsey v. Miami Dev. Corp. 689 S.W.2d 856, 858 (Tenn. 1985). “While duty was not part of the early English co m mon law jurisprudence of tort lia

bilit y, it has since become an essential element in negligence c ases.” Bradshaw , 854 S.W.2d at 869 (footnote omitted). “The existence or nonexistence of a duty owed to the p laintiff by t he defendant is entirely a question of law for the cour t.” Id . In determining whether a duty is owed, the court should consider whether “such a r elation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other – or, more simply, whether the interest of the plai ntiff whi ch has suffered invasion was entitled to legal protection at the hands of the defendant.” W. Page Keeton, Prosser & Keeton on the Law of Torts, § 37 at 236 (5 th ed. 1984).

In general, a defendant owes a plaintiff a duty of “reasonable care under all of t he circumstances.” Doe v. Linder Constr. Co. , 845 S.W.2d 173, 177 (Tenn. 1992). Reasonable care must be defined in the contex t of the particular circumstances of the par ties. Id . at 178. “If the injury which occurred could not have been re asonably foreseen [bythe defendant], the duty of care does not arise, and even t hough the

act of the defendant in fact caused the injury, ther e is no negligence and no liability.” Id. (citing Spivey v. St. Thomas Hospital , 31 Tenn. App. 12, 211 S.W.2d 450, 456 (1948)).

The Funeral Home owed Steinbrunner a duty to conform to a reasonable person standard of
care un der all of the circumstances. This duty is based upon the relationship betwee n the parties

. We find t hat the Funeral Home satisfied a reasonable per son standard of care under all the circumstances present in this case. The Funeral Homemaintained paperwork regarding the dec edent and reburied him in proper clothing. Moreover, because the Funeral Home did n ot have a

duty to attach identification to decedent’s body in 1992, the Funeral Home was not negligent in failing to attach such identification. In an agreed order entered February 28, 2001, the par ties agreed

that there-10-

is no issue as to the applicab ility of T.C.A. § 62-5-313(d)(1), and that all allegations as to any violation of this statute were dismissed with prejudice. Nevertheless, Steinbrunner tries toraise thi s issue on appeal. This she cannot do. We find that Steinbrunner’s claims of ne gligence arewithout merit.

D.
Steinbrunner

claims the Funeral Home violated T.C.A. § 68-3-510 by faili ng to fill in the final block of information on the disinterment /re interment permit, and as a result, this caused emotional distress because she was not certain of the identity of the body in the casket when it was exhumed on March 10, 1998.

The Funeral H o me contends that it complied with T.C.A. § 68-3-510 by securing a disinterment/reinterment

p ermit from the health department. However, the Funeral Home a rgues that if not filling out the f

inal sec tion is a violatio n of the st atute, the violatio n is not suf ficient t o support a claim of negligence per se . In support of

this argu ment, the Funeral H ome cites Bish v. Smith & Nephew Ric

hards, Inc. , C/A No. W1998-00373-COA-R9-CV, 2000 WL 1294324, at *2 (Tenn. Ct. App. W. S. , filed Au g. 23, 2000), which held that “a statutory negligence per se claim cannot stand unless the statute establishes a standard of care .” Id

. Furthermore,

[w]herea statutor

y provisio n does n ot def ine a standard of
care but merely imposes an administrative require ment, such
as the requ

ireme nt to obtain a

license or to file a repor t to supp o rt a regulatory scheme, violation of such requirement will not support a negligence per se claim. Ev en if th e regulatory scheme as a whole is designed to protect the public
or to promote

safety, the licensing duty itself is not a standard of care, but an administrative requirement.
Id. According to T.C.A. § 68-3-510 (2001),

(a) When a dead body is released or disposed of by a n institution, t he pe rson in charge of the institution shall keep
a rec ord sh owing the name of the deceased, date of de ath,
name and addr ess of the person to whom the body is released, date of removal from the institution, or if finally disposed of by the institution, the date, place and manner of disposition. (b) A funeral director, embalmer or oth er person who removes from the plac e of dea

th or tran sports or

finally di sposes of

a deadbody or fe

tus, in add

iti on t o filing any certificate or other report required by this chapter or regulations-11- promulgated hereund

er, shall keep a r

ecord w hich shall identify the body, and such information per taining to t his receip t, removal and

delivery of the body as may be provided in regula tions adop ted by the

departm ent.
Like the statute in Bish , T.C.A. § 68-3-510 does not specify a standar d of car e or impos e a pena

lty for failure to comply with each requirement of the statute. Compliance with the statute is an administrative requirement and as such, violation of the statute cannot support a claim of negligence per se . Therefore, we find that Steinbrunner’s cla im of negligence per se is without me rit.

E.

1.
Steinbrunner

claims that the Fun eral Home’s “failure to maintain the recor ds required by statute and failure to treat

the body w ith respe ct and dig nity shows...such disregard for the rights of others that a jur

y could imp ly a consc ious indiff erence to the con sequenc es.” The Funeral H ome responds that because Steinbrunner cannot make out a prima fac ie case of negligence, she cannot maintain a cause of action for gross negligence.
We find t hat Steinb

runner f ailed to establish a cause of

action f or gross negligenc e. Gross negligence is “a negligent act done with utter unconce rn for the safety of

others, or one done with such a r eckles s disrega

rd for the rights o f others that a co nscious in differe nce to co nsequences is implied in law.” Ruff v. Memphis Light, Gas and Water Div. , 619 S.W.2d 5 2 6, 528 (Te nn. Ct. App. 1981) (quoting Odum v. Haynes , 494 S.W.2d 795, 807 ( Tenn. Ct. A pp. 1972) ). Beca

use we find that Steinb

runner f ailed to e stablish

that the Funeral Home committed an act of negligence, and because a finding of negligence is essential to a claim of gross negligence, we find that Steinbrunner failed to establish that the Funeral Home acted in a grossly negligent manner.

2.

The trial court found that Dr. King’s actions arose out of his duties under T.C.A. § 38-7-112, and as such, h

e enjoys immunityfrom Steinbrunner’s claims. Steinbrunner alleges that the manner in which Dr . King tre ated her constitute s gross ne gligence . As evidence of Dr. King’s conscious indifference

toward her, Steinbrun

ner cite s a statement from Dr. King’s deposition, “her emotional state did not re ally conc ern me as much as her–her irrational conversa tion.” Steinbrunner argues that a jury he aring thisstatemen t could find that Dr. King’s co nduct wa s outrage ous. To the contrary,
we find that b ased on Dr. King’sstatemen t, a jury o nly could conclude that Dr. King was concerned about Steinbrun

ner but th at her ir

rationa l conver sation co ncerne d him more than her emotional state. We find t hat Steinb

runner’ s claim is w ithout mer it.

VI.-12-

The defendants have shown that ther e is no genuine issue of material fact as to any of the plaintiff’s causes of action and that they are entitled to a judgment as a matter of law. Accordingly, the judgmentof the tri al court is affir med. This case is remanded to the trial court for collection of costs assessed below, pursuant to applicable law. Costs on ap peal are taxe d to Wanda J. Steinbrunner.

________________________________ CHARLES D. SUSANO, JR., JUDGE