Holsen page 1
Holsen v. Heritage (1991)
165 Wis.2d 641, 478 N.W.2d 59
[No. 91-0400. Court of Appeals of Wisconsin. November 26, 1991.]
Beth HOLSEN, Charles Holsen, Jr., Daniel Holsen, James Holsen, Jill Jones and
Michael Jones, Plaintiffs-Appellants, v. HERITAGE MUTUAL INSURANCE COMPANY,
Prasser-Kleczka, Inc., Jerome J. Kleczka, James G. Waldhuetter
and Michael G. Smukowski, Defendants-Respondents.
COUNSEL
Patricia A. Schober of Hausmann-McNally, S.C., Milwaukee, for plaintiffs-appellants.
Arthur P. Simpson of Snodgrass & Simpson, Milwaukee, for defendants-respondents.
Before MOSER, P.J., and SULLIVAN and FINE, JJ.
OPINION
SULLIVAN, Judge.
Five adult children and one son-in-law of decedent Charles Holsen, Sr. (collectively,
"plaintiffs"), appeal from a final order dismissing their amended complaint for negligent
infliction of emotional distress because it failed to state a claim for which relief may be
granted. 1 Section 802.06(2)(f), Stats. Their amended complaint seeks compensatory
and punitive damages for the intentional and negligent invasion of their right to bury the
decedent.
This invasion allegedly caused the five adult children extreme emotional distress with
accompanying physical pain, suffering and disability. The son-in-law demands
damages for the loss of society and companionship of his wife, one of the five adult
children. The pleadings, liberally construed as they must be, state a claim upon which
relief may be granted. We reverse.
FACTS
The amended complaint alleges that on August 28, 1989, Prasser-Kleczka, Inc.
(Prasser-Kleczka), through their agents and employees, "agreed to prepare the
decedent's remains for a funeral and burial service in a professional and workmanlike
manner." Fifteen minutes before the scheduled time for public visitation, the plaintiffs
noted that the remains of another person, later determined to be those of Peter Nemke,
were lying in state in the casket purchased by plaintiffs. It is alleged that Prasser-
Kleczka undressed the remains of Peter Nemke in search of physical characteristics
unique to Charles Holsen, Sr. After about two and one-half hours of discussion,
Prasser-Kleczka conceded error and exhumed the putative remains of Peter Nemke,
who had been buried the previous day. Decedent Holsen's remains were found in Peter
Nemke's grave. Holsen's remains had correspondingly been in state during the Nemke
visitation at Prasser-Kleczka. 2
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In their sec. 802.06(2)(f), Stats. motion to dismiss the amended complaint, Prasser-
Kleczka and its insurer, Heritage Mutual Insurance Company ("Heritage"), argue that no
recovery as a matter of law can be had when the plaintiffs claim that performance under
a service contract either intentionally or negligently inflicted emotional distress. They
also argue that the plaintiffs are precluded from recovery under a negligent infliction of
emotional distress claim because plaintiffs were outside the "zone of danger" that would
allow recovery. Finally, Prasser-Kleczka and Heritage contend that Wisconsin law bars
any claim for the negligent mishandling of a corpse.
Prasser-Kleczka's motion to dismiss tests the legal sufficiency of the plaintiffs' amended
complaint. Wagner v. Dissing, 141 Wis.2d 931, 936, 416 N.W.2d 655, 657
(Ct.App.1987), review denied, 142 Wis.2d 949, 417 N.W.2d 896. On review of the
dismissal, we construe the pleadings liberally and will affirm the dismissal only if it is
"quite clear" that the plaintiffs cannot recover under any other circumstances. Id.
NEGLIGENCE
No Wisconsin case has specifically addressed a plaintiff's right to recover damages for
negligent mishandling of a corpse. However, fundamental principles defining a
survivor's right to bury the body of a relative have been established. Although the duty
of a proper burial is owed to the community, and not to the decedent or the survivors,
common law provides a right to relatives of a decedent to give the decedent a proper
burial. Koerber v. Patek, 123 Wis. 453, 459-60, 102 N.W. 40, 42 (1905). 3 More
specifically:
[I]n the nearest relative of one dying, so situated as to be able and willing to perform the
duty of ceremonious burial, there vests the right to perform it, and that this is a legal
right, which ... is a wrong to violate, and which, therefore, courts can and should protect
and vindicate. Id. at 459-60, 102 N.W. at 42. The Koerber court recognized that the
shock to a survivor's affections and subsequent affect on sentimental relationships is a
sufficient basis to commence and maintain a claim for relief. Koerber, 123 Wis. at 460,
102 N.W. at 42.
Intentional interference with familial burial rights by mutilation or disturbance of the
corpse is compensable. Scarpaci v. Milwaukee County, 96 Wis.2d 663, 672-73, 292
N.W.2d 816, 820-21 (1980). 4 "The basis for recovery of damages is found not in a
property right in a dead body but in the personal right of the family of the deceased to
bury the body." Id. In cases where a corpse is intentionally mutilated or intentionally
mishandled prior to or at the time of burial, the legal right not to be harmed from such
wrongful conduct constitutes a property interest.
An invasion to such a right need not include either an injury to physical property nor to
person or character. The wrongful invasion of a clear right is of itself sufficient to
support an action, and the law presumes damages, though they may be only nominal.
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Koerber, 123 Wis. at 460, 102 N.W. at 42 (citations omitted). 5 At the same time, such a
legal right may be denied in the interest of public policy or if the accomplishment of
justice is impractical. Id.
Unlike Koerber, where the plaintiff alleged intentional mutilation of a corpse, the
complaint in Scarpaci contained an allegation of negligent performance of an autopsy
resulting in severe emotional distress and accompanying physical injuries to the
decedent's relatives. 6 Scarpaci, 96 Wis.2d at 665-66, 292 N.W.2d at 818. The supreme
court in Scarpaci concluded:
Because the complaint in the instant case asserts that the defendants' negligent or
intentional interference with the right of the parents to bury the body caused the
plaintiffs both great emotional distress and physical injuries, we conclude that the
complaint is sufficient to survive the initial test of a motion to dismiss. Id. at 675, 292
N.W.2d at 822. The court also stated that if negligence is alleged with an accompanying
injury limited to an adverse impact on the survivor's feelings, "there may be no
recoverable damages in Wisconsin." Id. at 673, 292 N.W.2d at 821.
Prasser-Kleczka argues that a person performing a personal service contract has no
duty to complete the contract in a manner that does not create unreasonable risk of
emotional harm, citing Alsteen v. Gehl, 21 Wis.2d 349, 361-62, 124 N.W.2d 312, 319
(1963). The Alsteen case involved an acrimonious business relationship between an
aluminum siding contractor and a widowed homeowner. During the three winter months
of home improvement construction, there were several contentious conversations
between Mrs. Alsteen and Mr. Gehl. Ten months after the work was commenced, Mr.
Gehl filed suit for nonpayment and Mrs. Alsteen filed a separate action claiming an
intentional and negligent infliction of severe emotional harm. Id. at 353-54, 124 N.W.2d
at 314-15. The court limited Mr. Gehl's duty to Mrs. Alsteen to that duty expressed in
the four corners of the contract. In affirming the trial court's judgment dismissing Mrs.
Alsteen's complaint, the supreme court stated: "Mr. Gehl did not have a duty to Mrs.
Alsteen to conduct himself in a manner unlikely to create unreasonable risk of
emotional harm." Id. at 363, 124 N.W.2d at 319.
Although the holding in Alsteen appears relevant to this case, we reject Prasser-
Kleczka's assertion that Alsteen is controlling. The contractual posture between the
parties in this case does not supersede Prasser-Kleczka's common law duty not to
interfere with plaintiffs' right of burial. This duty, first defined in Koerber, is imposed on
Prasser-Kleczka irrespective of its service contract with the plaintiffs. McDonald v.
Century 21 Real Estate Corp., 132 Wis.2d 1, 6, 390 N.W.2d 68, 70 (Ct.App.1986)
("existence of a contract is ignored when determining whether [the] misconduct is
actionable in tort") (citation omitted), review denied, 132 Wis.2d 484, 393 N.W.2d 544.
More importantly, the plaintiffs do not allege a separate claim for a negligent
performance of a contract--the plaintiffs argue that Prasser-Kleczka negligently
interfered with their common law right to properly conduct a burial.
The plaintiffs allege both negligent and intentional tortious conduct on the part of
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Prasser-Kleczka. Their amended complaint further alleges that such conduct caused
serious mental anguish and extreme emotional distress which resulted in physical harm
of a possibly permanent nature. For the purpose of testing the sufficiency of a
complaint, the trial and appellate courts are bound to accept pleaded facts, and all
reasonable inferences from them, as true. Scarpaci, 96 Wis.2d at 669, 292 N.W.2d at
819. The plaintiffs have stated a claim that is legally sufficient and therefore should not
have been dismissed.
CAUSATION
Prasser-Kleczka cites Garrett v. City of New Berlin, 122 Wis.2d 223, 362 N.W.2d 137
(1985) and related cases in support of the proposition that the plaintiffs in this case
were not within the "zone of danger" necessary to recover for emotional distress
damages, even if such distress is manifested by physical harm. We decline to sift
through the "zone of danger" versus "substantial factor" conundrum in determining
whether the plaintiffs may recover for physical harm because such law is irrelevant to
the facts of this case. 7 The plaintiffs have asserted a common law right to bury their
father, which was allegedly interfered with by Prasser-Kleczka's conduct. 8
In summary, plaintiffs' amended complaint states a claim for which relief can be granted
because it alleges an interference with their common law right of proper burial. The
claim, inclusive of the allegation of both emotional and physical harm resulting from
Prasser-Kleczka's conduct, is sufficient to withstand the defendants' motion to dismiss.
Order reversed and cause remanded.
1 In addition to granting the defendants' motion to dismiss the negligent infliction of emotional distress claim, the order denied
defendants' motion to dismiss the action for intentional infliction of emotional distress.
2 The relatives of Peter Nemke did not notice the mistake during a four-hour wake. Peter Nemke's relatives subsequently
commenced a legal action against Prasser-Kleczka.
3 The Koerber court stated:
We can imagine no clearer or dearer right in the gamut of civil liberty and security than to bury our dead in peace and unobstructed;
none more sacred to the individual, nor more important of preservation and protection from the point of view of public welfare and
decency. Id. at 463, 102 N.W. at 43.
4 However, if a complaint alleges a negligent act with only injury to the feelings of the survivors as the caused harm, there may be
no recoverable damages in Wisconsin. Scarpaci, 96 Wis.2d at 673, 292 N.W.2d at 821.
5 The Koerber court specifically limited the plaintiff's ability to maintain an action, absent physical injury, to circumstances where the
"defendant's act is alleged to have been willful." Id., 123 Wis.2d at 463, 102 N.W. at 43.
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6 The plaintiffs in Scarpaci also allege that the autopsy was unauthorized and in violation of sec. 979.121, Stats.; the actual autopsy
itself was unreasonable and not performed in good faith; the autopsy was a willful and wrongful invasion of the survivor's right to
provide a proper burial for their child; and argued alternatively that Milwaukee County Medical Examiner's Office intentionally
caused the emotional distress of the plaintiffs. Id., 96 Wis.2d at 666-68, 292 N.W.2d at 818.
7 The "zone of danger" rationale was soundly repudiated by three concurring justices in Garrett. Id. at 243-46, 362 N.W.2d at 147-
49. The zone of danger analysis is a policy determination of when the defendant's duty to the plaintiff exists. The zone of danger is
based upon the range of ordinary physical peril to the plaintiff. Id. at 229- 30, 362 N.W.2d at 141.
8 The standing of plaintiff Michael Jones, son-in-law of decedent, was not briefed and therefore will not be addressed by this court.
In re Balkus, 128 Wis.2d 246, 255 n. 5, 381 N.W.2d 593, 598 n. 5 (Ct.App.1985).
