Death is difficult. It can cause a host of emotions, most of which are typically unpleasant. In most situations, the deceased are handled respectfully and tended to prior to a funeral service, celebration of life, or other farewells. Sadly, on some occasions the deceased are not respected, and living persons “related to” or “close to” the deceased may be entitled to recover damages for emotional distress when tortious interference with a corpse occurs.

Washington Tortious Interference with a Corpse Case

Fox v. City of Bellinghamⁱ involves a case in which a brother sued a City for the mishandling of his brother’s corpse. Mr. Fox lived with his brother in Bellingham, Washington. In 2018, Mr. Fox’s brother passed away. The hospital did not have enough room to keep the body, so the fire department brought the body to the local fire station. At the station, the fire department used the body for a training exercise, without first seeking permission from the deceased’s family. Fire department employees took turns intubating the body, approximately 15 times. Mr. Fox claimed he experienced severe emotional distress upon learning of these events. Thereafter, Mr. Fox participated in planning his brother’s end of life celebration. He then brought a claim of tortious interference with a corpse against the City of Bellingham in federal court.

The case reached the Washington Supreme Court via questions certified by the United States District Court for the Western District of Washington at Seattle. The questions posed were as follows:

1. 1. Whether only those individuals identified as “next of kin” at the time of a decedent’s death have standing to bring a claim for tortious interference with a corpse?

2. 2. Whether Mr. Fox, the decedent’s brother, is within the class of plaintiffs that may bring a claim for tortious interference with a corpse?

The first question was one of first impression for the Washington Supreme Court. The City argued Mr. Fox did not have standing under the law. Washington law provides who may have the right to control the disposition of the remains of a deceased person if the deceased has not prearranged such a personⁱⁱ. The City asserted the law limited standing to those persons who were the lawful custodians of a deceased body and the law does not specifically include a brother on the list of lawful custodians.

The court turned to the historical development of this nature of tort. It found mental suffering actions were initially limited to negligence cases with physical injury, breach of marriage contracts, and willful wrongs. However, early courts would permit suit. Traditional tort doctrine was circumvented by classifying these actions under other areas of law. For example, mutilation of a corpse may have been classified as a trespass against property but was instead an action for emotional distress. This quasi-property theory was used to camouflage the actual basis for suit and was essentially a peg upon which to hang damages.

Wright v. Beardsley

In the early 20^th century, such actions were aimed at compensating for “a wrong against the feelings of the plaintiffs inflicted by a wrongful and improper burial of their dead…a tort or injury against the person.ⁱⁱⁱ” If the court applied RCW 68.50.160 as requested by the City to determine standing, the determination of who could bring suit would be based on the randomness of familial survivorship. This may permit some family members to sue while precluding others closer to the deceased from bringing an action. The court found implementation of RCW 68.50.160 as the test for standing would have arbitrary and harmful effects.

The court rejected the ancient quasi-property doctrine, finding it had eroded through time. Instead, the court looked to a few key factors to utilize a more expansive approach in deciding who may be able to bring suit for damages in this somewhat rare section of torts. An example was family members who shared significant and substantial contacts with the deceased during their lifetime are persons who may foreseeably suffer significant mental anguish. The court contemplated a variety of other familial relationships which may be closer than those shared within the nuclear family. Regularity of contact when decedent was alive was also a factor considered by the court.

Here, Mr. Fox lived with his brother during his adult life, and the two spoke to each other weekly. Mr. Fox took part in preparing his brother’s end of life celebration. The court found this was sufficient evidence Mr. Fox was a “close relative” of his brother and therefore had standing to bring suit.

Takeaway

The quasi-property doctrine has eroded as tort law has evolved. The ruling in this case changed the landscape of who may recover damages for interfering with a corpse. The decision appears to invite new litigation in this arena of torts. Defendants now face a much broader scope of potential plaintiffs and damages amounts paid will likely increase. Washington law is now clear in permitting “close relatives” with significant and substantial contacts with the deceased while s/he was alive to recover for emotional distress arising from interfering with a corpse.

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