SHARON G. LEE, J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., JANICE M. HOLDER, GARY R. WADE, and WILLIAM C. KOCH, JR., JJ., joined.
Dr. Rondal D. Akers, Jr. and Lucinda Akers sued T. Ray Brent Marsh for the alleged mishandling of their deceased son's body, which had been sent to Mr. Marsh's crematorium for cremation. Following a jury verdict for the Akerses, the trial court entered judgment against Mr. Marsh based on the intentional infliction of emotional distress claim but granted his motion for a judgment notwithstanding the verdict on the Akerses' Tennessee Consumer Protection Act ("TCPA") and bailment claims. The Court of Appeals affirmed. We hold the trial court did not err in (1) holding Mr. Marsh liable for intentional infliction of emotional distress in the amount of the jury verdict; (2) instructing the jury that they were permitted to draw a negative inference resulting from Mr. Marsh's invocation of his Fifth Amendment privilege during questioning; and (3) dismissing the TCPA and bailment claims. The judgments of the trial court and the Court of Appeals are affirmed.
Rondal Douglas Akers III (the "Deceased") died at the age of thirty-four on November 23, 2001, following a brief illness. His parents, Dr. Rondal D. Akers, Jr., and Lucinda Akers, made funeral arrangements with Buckner-Rush Funeral Home in Cleveland, Tennessee. Although Dr. and Mrs. Akers were opposed to having their son's body cremated, they authorized and arranged for the cremation in accordance with his expressed wishes. After their son's funeral service, his body was transported to Tri-State Crematory in Noble, Georgia, for cremation. Later, the Akerses received what was purported to be their son's cremains (the "Cremains").
Subsequently, it was discovered that Mr. Marsh had not been cremating bodies that were sent to Tri-State for cremation, but rather burying or dumping the bodies in
From the Tri-State property, authorities recovered bodies and body parts of over 320 persons, in widely varying stages of decay. Some were buried in shallow graves. Some had been dumped in surface trash pits. Human remains and bodies were found in virtually every building on the property. A body was found in a hearse, another in a van, and a partially mummified corpse of a man in a suit was discovered in a box. Some of the bodies recovered had been partially cremated, some were without arms and legs, and some had their extremities burned away. An unburned corpse was laying in the crematory's retort.
The GBI's efforts to find all the bodies at Tri-State were extensive. All of the trees on the roughly sixteen-acre property were cut down, and bulldozers were used to remove the top two or three inches of soil. A lake on the property was drained and the bottom dredged with heavy machinery. Agent Ramey testified that "every inch" of the property was carefully searched. Other property that was nearby or adjacent to Tri-State property was also inspected. Agent Ramey testified that he was absolutely confident that all of the bodies that were on the Tri-State property had been recovered. Deceased's body was never found, and the GBI's search and recovery effort yielded no clue as to what actually happened to his body.
After the Akerses learned about the problems at Tri-State, they took the box containing their son's "cremains" to the GBI and were told that the box contained potting soil and cement. The Akerses suffered under this misconception from 2002 until September 2008 when they learned that the box contained human cremains.
The Tri-State Crematory investigation produced criminal and civil litigation in Tennessee and Georgia. Mr. Marsh was indicted and pleaded guilty to multiple criminal charges in Georgia and Tennessee stemming from his operation of Tri-State. He was incarcerated in Georgia at the time of trial of this action.
On July 26, 2002, the Akerses sued Mr. Marsh.
Dr. Hugh E. Berryman, a board-certified forensic anthropologist, testified as an expert witness for Mr. March. Dr. Berryman, who examined and analyzed the Cremains, testified that several foreign metal items were found in the Cremains. One of the items was a metal stud bearing the inscription "Backyard Blue" from a pair of denim blue jeans. Deceased, however, was not wearing blue jeans when he was sent to Tri-State for cremation. There were also several pieces of fine wire that appeared to be from a mechanical device or a surgical procedure, and that Dr. Berryman characterized as "sternal chest wire" that was "very likely fron a surgery." Deceased did not have wire from a mechanical device or a surgical procedure on or in his body. When asked whether he found "commingling in the Akers reported cremains," Dr. Berryman replied, "from what I know of Rondal Akers, I found some things in those cremains that didn't belong there." Dr. Berryman testified that no scientific test exists to determine whether the Cremians delivered to the Akerses are those of Deceased or of someone else.
Dr. Berryman also closely examined the retort at Tri-State and testified that it was in such bad condition that he was surprised that it was operational. He described the floor of the retort as "in really bad shape," stating that "it had pockets, it had [fissures] running through it, and some of the [fissures] were two inches deep. It was ... just amazing, the floor, it was in terrible shape." Dr. Berryman testified that the tools used at Tri-State to remove the cremains "look[ed] very primitive;" one was "like a hoe" with an eight-foot handle. Dr. Berryman further stated:
He spent several days inside the retort, excavating it like an archaeological site, because he "wanted to see how much material and where it is, how much material is left behind. And the thing that was shocking to me is how much actually was left behind." The retort floor was stratified. On the top layer of loose dust and sand that Dr. Berryman could move with a brush, he found sixty-nine items on the surface, including teeth, bone fragments,
As a part of his work on the case, Dr. Berryman visited the East Tennessee Crematorium Company in Maryville, Tennessee, to see how a quality crematorium was operated so he could compare it with Tri-State's operation. At the East Tennessee Crematorium, the floor of the retort was smooth and solid. The floor was swept clean of the cremains after a cremation, and Dr. Berryman did not see any commingling of materials with the cremains.
Following the close of proof and deliberations, the jury returned its verdict on the written verdict form, answering "YES" to the following questions: "(1) Did Brent Marsh intentionally inflict emotional distress or outrageous conduct upon the plaintiffs? (2) Did Brent Marsh violate the Tennessee Consumer Protection Act? (3) Did Brent Marsh violate a bailment responsibility with the plaintiffs?" The jury awarded Dr. Akers compensatory damages in the amount of $275,000, and Mrs. Akers compensatory damages in the amount of $475,000. The trial court entered judgment on the jury verdict.
Mr. Marsh filed a post-trial motion for judgment notwithstanding the verdict ("JNOV") or for a new trial. The Akerses filed a motion requesting the trial court to award treble damages and attorney's fees under the TCPA. After a hearing, the trial court granted Mr. Marsh a partial JNOV on the bailment and TCPA claims, dismissed those claims, and denied Mr. Marsh's motion for a JNOV or for a new trial on the intentional infliction of emotional distress claim. The Court of Appeals affirmed the trial court's judgment. Akers, 2011 WL 4908396, at *1.
Both Mr. Marsh and the Akerses filed applications for permission to appeal. We granted both applications and address the following issues: (1) whether the trial court erred in denying Mr. Marsh's motion for a JNOV or for a new trial on the intentional infliction of emotional distress claim; (2) whether the trial court erred in instructing the jury that they were permitted to draw a negative inference from Mr. Marsh's invocation of his Fifth Amendment privilege in response to certain questions asked of him during his deposition; (3) whether the trial court erred in granting Mr. Marsh a JNOV and dismissing the TPCA claim; and (4) whether the trial court erred in granting Mr. Marsh a JNOV and dismissing the Akerses' bailment claim.
The issues raised, with the exception of our review of the jury verdict, present questions of law, which we review de novo with no presumption of correctness. Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442, 448 (Tenn.2012). "Findings of fact by a jury in civil actions shall be set aside only if there is no material evidence to support the verdict." Tenn. R.App. P. 13(d). In determining whether "there is material evidence to support the jury verdict, we `take the strongest legitimate view of all the evidence in favor of the verdict, assume the truth of all evidence that supports the verdict, allow all reasonable inferences to sustain the verdict, and discard all countervailing evidence.'" Barkes v. River Park Hosp., Inc., 328 S.W.3d 829, 833 (Tenn.2010) (quoting
The legal argument supporting Mr. Marsh's assertion that the trial court should have granted his motion for a JNOV or for a new trial on the intentional infliction of emotional distress claim is a rather nuanced one. Mr. Marsh argues that in Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d 22 (Tenn.2005), this Court effectively created two separate causes of action for the infliction of emotional distress — one for intentional infliction and another for reckless infliction. Because the Akerses did not specifically allege a claim for "reckless infliction of emotional distress," Mr. Marsh argues that they should be precluded from recovery based on a theory of reckless infliction. It follows, according to this argument, that proof presented by the Akerses from which the jury could have concluded that Mr. Marsh acted recklessly in inflicting emotional distress should be held insufficient because the plaintiffs did not specifically allege reckless infliction of emotional distress but only intentional infliction of emotional distress. We disagree with this argument.
In Rogers v. Louisville Land Co., 367 S.W.3d 196 (Tenn.2012),
Id. at 205 n. 6 (internal citations omitted); see also Lourcey v. Estate of Scarlett, 146 S.W.3d 48, 51 (Tenn.2004) ("To state a
The Akerses are not precluded from recovery because they did not specifically allege reckless infliction of emotional distress in their complaint. Because a claim for intentional infliction of emotional distress can be proven by a showing that a defendant acted recklessly, and the Akerses asserted a claim for intentional infliction of emotional distress, the trial court did not err in allowing the claim to go to the jury and entering judgment on the jury verdict.
The trial court instructed the jury as follows:
(Emphasis added). This instruction closely tracks the current Tennessee pattern jury instruction on intentional infliction of emotional distress, T.P.I.-Civil 4.35 (2011). In Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn.1992), this Court defined "reckless conduct" as occurring "when the person is aware of, but consciously disregards, a substantial and unjustifiable risk of such a nature that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances." In future cases, if a claim of intentional infliction of emotional distress based on reckless conduct is tried to a jury, it would be helpful for the trial court to include a jury instruction defining "recklessness." Nevertheless, the jury here was instructed that the plaintiffs could recover if they proved the defendant acted with reckless disregard of the probability that his outrageous conduct would cause severe emotional distress, and consequently the failure of the trial court to specifically define "recklessness" in its instructions is not fatal to the jury verdict.
Mr. Marsh also complains that in the written jury verdict form, the question was phrased as "Did Brent Marsh intentionally inflict emotional distress or outrageous
Rogers, 367 S.W.3d at 205. The trial court in this case instructed the jury without the benefit of the Rogers decision, at a time when it was still common practice to refer to "intentional infliction of emotional distress" and "outrageous conduct" as "different names for the same tort." Lane v. Becker, 334 S.W.3d 756, 762 n. 3 (Tenn.Ct. App.2010). Furthermore, "[j]ury instructions are not measured against the standard of perfection." City of Johnson City v. Outdoor W., Inc., 947 S.W.2d 855, 858 (Tenn.Ct.App.1996) (citing Grissom v. Metro. Gov't of Nashville, 817 S.W.2d 679, 685 (Tenn.Ct.App.1991)). In addressing "whether a trial court committed prejudicial error in a jury instruction, [we] review the charge in its entirety and consider it as a whole, and the instruction will not be invalidated if it `fairly defines the legal issues involved in the case and does not mislead the jury.'" Nye v. Bayer Cropscience, Inc., 347 S.W.3d 686, 699 (Tenn.2011) (quoting Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 446 (Tenn.1992)). The trial court's jury instructions as a whole are not misleading and easily meet this standard.
We have carefully reviewed the record in this case and find there is sufficient material evidence of Mr. Marsh's reckless conduct to support the jury verdict imposing liability for intentional infliction of emotional distress. The Akerses presented evidence showing that Mr. Marsh pleaded guilty to the felony of criminal simulation with regard to Deceased's body. The proof also demonstrates that Mr. Marsh routinely treated bodies sent to him for cremation in a disrespectful and inappropriate manner, dumping or improperly burying them instead of cremating them. When he did cremate them, it was done in an improper manner that resulted in substantial commingling of the cremains with the cremains of other bodies and other foreign items. We affirm the jury verdict for intentional infliction of emotional distress.
During his deposition, Mr. Marsh invoked his Fifth Amendment privilege in response to numerous questions asked by plaintiffs' counsel. The trial court allowed portions of Mr. Marsh's deposition to be read to the jury and played a videotape showing Mr. Marsh taking the Fifth Amendment in response to questioning. The trial court then instructed the jury as follows regarding negative inferences that might be drawn from Mr. Marsh's invocation of the Fifth Amendment privilege:
The trial court further instructed the jury that it was permitted to draw a negative inference from Mr. Marsh's refusal to answer the question "Are [the Cremains] the cremains of Rondal Douglas Akers, III?" and "Isn't it true those are not the cremains of Rondal Akers, III?"
Mr. Marsh makes two arguments supporting his assertion that the trial court committed reversible error in addressing his invocation of the Fifth Amendment Privilege. First, Mr. Marsh asserts that there was not sufficient corroborating independent evidence regarding the facts to which he refused to answer to allow for a negative inference instruction to be given to the jury. Second, he insists that it was error to allow questions and answers from Mr. Marsh's deposition to which no negative inference applied to be read to the jury.
The Fifth Amendment to the Constitution of the United States provides that no person shall "be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Federal courts have held that the Fifth Amendment's protections extend to any type of proceeding, including civil trials,
Given this tension between the rights of both parties in civil matters, the United
Id. (internal citations omitted); see also Steppach v. Thomas, 346 S.W.3d 488, 521 (Tenn.Ct.App.2011) (applying prevailing interpretation of Baxter as requiring corroborating independent evidence).
We agree with the standard adopted by the Doe court. Therefore, we hold that the trier of fact may draw a negative inference from a party's invocation of the Fifth Amendment privilege in a civil case only when there is independent evidence of the fact to which a party refuses to answer by invoking his or her Fifth Amendment privilege. In instances when there is no corroborating evidence to support the fact under inquiry, no negative inference is permitted.
Mr. Marsh first argues that the Akerses produced no corroborating evidence that he mishandled Deceased's body, and thus the jury should not have been instructed that it could draw a negative inference from his invocation of his Fifth Amendment Privilege. Specifically, Mr. Marsh argues that evidence of the way in which he treated other bodies is not evidence of how he treated that of Deceased, and that his guilty plea of the offense of criminal simulation with regard to Deceased's body does not constitute corroborating evidence.
We agree with Mr. Marsh that evidence of mishandling and mistreatment of other bodies is insufficient corroborating evidence to alone support a negative inference instruction. Courts have previously determined that for an adverse inference to be permitted, a plaintiff must present corroborating evidence regarding the specific fact to which the defendant refuses to answer. Doe, 232 F.3d at 1264-65; Steppach,
Mr. Marsh's argument, however, fails because the Akerses produced other evidence that tends to show that the body of Deceased was mishandled and not properly cremated. For example, in a video recorded during the GBI investigation, Mr. Marsh pointed to a body on the floor of a building and identified it as "Akers." Although it was later proved that the body was not that of Deceased, the video evidence indicates that Mr. Marsh believed he did not fully cremate Deceased's body. Even if Deceased was in fact cremated, the evidence established that the cremation did not comply with either industry standards or any reasonable notion of common decency and respect for the dead and the living who have lost a loved one. The evidence shows that cremation was done in a wholly improper and inappropriate manner using a retort that was in poor condition which could only result in substantial commingling with the cremains of previously cremated bodies and adulteration from other foreign materials. Furthermore, the testimony of Dr. Berryman established that metal objects were found in the Cremains that did not belong to Deceased, including a wire from a mechanical device or a surgical procedure and a rivet from a pair of jeans. Expert testimony proved that the Cremains were returned to the Akerses in a commingled and adulterated condition. We believe that the foregoing is sufficient corroborating evidence that, if Deceased was cremated, Mr. Marsh mishandled the body of Deceased during the cremation.
Mr. Marsh further argues that his guilty plea to the felony of criminal simulation
Mr. Marsh's second argument insists that the trial court erred in allowing the Akerses' attorney to read questions and answers to the jury from Mr. Marsh's deposition testimony to which no negative inference applied. However, before permitting the deposition testimony to be read to the jury, the trial court informed counsel that it would instruct the jury as to which specific questions it could give a negative inference. For the remaining questions, the jury would be (and was) specifically instructed to give the response the weight to which the jury determined the response was entitled. Counsel for Mr. Marsh responded to the trial court: "That cures the problem, Your Honor. Thank you. I just wanted to make sure."
By withdrawing his objection and approving the trial court's proposed instruction as "cur[ing] the problem," Mr. Marsh has waived this issue on appeal. Tennessee Rule of Appellate Procedure 36(a) provides that a party is not entitled to relief if that party is "responsible for an error or ... failed to take whatever action was reasonably available to prevent or nullify the harmful effect of an error." Tenn. Rule App. P. 36(a). "It is an elementary principle of law that a party may not register an objection, later withdraw that objection, and subsequently raise the issue post-trial." State v. Garrin, No. 02C01-9501-CR-00028, 1996 WL 275034 at *5 (Tenn. Ct.Crim.App. May 24, 1996). Therefore, Mr. Marsh's second argument regarding his Fifth Amendment Privilege also fails.
The Akerses argue that the trial court erred by granting Mr. Marsh a JNOV and dismissing their claim alleging violation of the TCPA, Tennessee Code Annotated sections 47-18-101 to -2704 (2001 & Supp. 2011). Mr. Marsh argues that the TCPA does not provide a cause of action when the alleged damages suffered are for emotional distress without any economic or pecuniary loss. We agree with Mr. Marsh and hold that an action does not lie under the TCPA for emotional distress in the absence of pecuniary damages.
A motion for "judgment notwithstanding the verdict" is governed by Tennessee Rule of Civil Procedure 50.02, which terms such a motion as one for directed verdict
"In ruling on such a motion, the standard applied by both the trial court and the appellate court is the same as that applied to a motion for directed verdict made during trial." Mercer v. Vanderbilt Univ., Inc., 134 S.W.3d 121, 130 (Tenn. 2004). This standard requires the trial court and appellate courts to "take the strongest legitimate view of the evidence in favor of the opponent of the motion, allow all reasonable inferences in his or her favor, discard all countervailing evidence, and deny the motion when there is any doubt as to the conclusions to be drawn from the evidence." Id. at 130-31. In this case, the trial court granted its JNOV based purely on conclusions of law; there is no factual issue. In Mercer, this Court observed that "when the jury's verdict rests upon an error of law, a party who has moved for a directed verdict may request the trial court to set aside the verdict and enter a judgment in accordance with the party's motion for directed verdict." Id. at 130.
At the time the complaint was filed, the TCPA, Tennessee Code Annotated section 47-18-109 (Supp.2001), provided in pertinent part as follows:
(Emphasis added). Thus, the TCPA provides a cause of action for a plaintiff who has suffered an ascertainable loss of (1) money; (2) property; or (3) "any other article, commodity, or thing of value." See Discover Bank v. Morgan, 363 S.W.3d 479, 496 (Tenn.2012) ("Once an ascertainable loss has been established, the TCPA allows consumers to recover `actual damages.'"); Morrison v. Allen, 338 S.W.3d 417, 440 (Tenn.2011) (holding no cause of action under TCPA resulting from plaintiffs' decision to allow insurance policy to lapse because the decision "does not constitute a `loss of money or property'"); see also Wood v. Woodhaven Memory Gardens, Inc., 1991 WL 112273, at *5 (Tenn.Ct.App. June 27, 1991) (reversing award under TCPA where "the only damages claimed... are for emotional distress" resulting from cemetery's refusal to allow plaintiffs to place a full ledger memorial on their son's grave).
The TCPA does not provide a cause of action for purely emotional loss resulting from wrongful death. In Kirksey v. Overton Pub, Inc., 804 S.W.2d 68 (Tenn.Ct.App.1990), the plaintiffs asserted a TCPA claim resulting from the alleged wrongful death of their son due to the defendant's deceptive acts. The Kirksey plaintiffs argued that the life of their son was a "thing of value" that they had lost, and therefore the TCPA provided them a cause of action. Id. at 73. The Court of Appeals, ruling that the TCPA did not provide an action for purely emotional loss resulting from wrongful death, stated:
Id.
The Akerses have stated a claim for emotional loss and have not demonstrated
We now turn to the issue of whether the trial court erred in granting Mr. Marsh a JNOV and dismissing the bailment claim. The Akerses alleged that their delivery of Deceased's body to the funeral home "for the specific purpose of providing crematory services in a respectful and dignified manner" created a bailment relationship.
This Court has defined a bailment as "a delivery of personalty for a particular purpose or on mere deposit, on a contract express or implied; that after the purpose has been fulfilled, it shall be redelivered to the person who delivered it, or otherwise dealt with according to his direction or kept until he reclaims it." Dispeker v. New S. Hotel Co., 213 Tenn. 378, 373 S.W.2d 904, 908 (1963) (citing Breeden v. Elliott Bros., 173 Tenn. 382, 118 S.W.2d 219, 219 (1938)). Although bailments typically involve contractual agreements, an agreement is not always an indispensable element of a bailment relationship. A bailment relationship is generally founded on a contractual relation; however, "an actual contract or one implied in fact is not always necessary to create a bailment." Aegis Investigative Grp. v. Metro. Gov't. of Nashville & Davidson Cnty., 98 S.W.3d 159, 163 (Tenn.Ct.App.2002). The Aegis court recognized a type of constructive or involuntary bailment, which arises by operation of law where (1) the person who has possession of a chattel holds it under such circumstances that the law imposes on him or her the obligation of delivering it to another; (2) a person has lawfully obtained possession of another's personal property by means other than a mutual contract of bailment; or (3) a person has lawfully acquired the possession of another person's chattel and holds it under circumstances whereby he or she should, on principles of justice, keep it safely and restore it or deliver it to the owner. Id.; see also Campbell v. State, 2 Tenn.Crim.App. 39, 450 S.W.2d 795, 801 (1969) (holding that an actual contract or one implied in fact is not necessary to create a bailment when a person has lawfully acquired the personal property of another and holds it under circumstances whereby principles of justice dictate that the possessor keep it safe and restore it to the owner). The Court of Appeals ruled that the Akerses' bailment claim failed because the Akerses' agreement "was with the Funeral Home, not with Marsh or Tri-State." Akers, 2011 WL 4908396, at *25. We disagree with this reasoning. Although there was no express agreement between the Akerses and Mr. Marsh, there existed a constructive or involuntary bailment on which a bailment claim could be made.
The bailment claim fails, however, because a corpse is not "personalty" for bailment purposes. See generally Tinsley
The judgments of the Court of Appeals and the trial court are affirmed. Costs on appeal are assessed one-half to the Appellants, Rondal Akers, Jr. and Lucinda Akers, and one-half to the Appellee, T. Ray Brent Marsh, and his surety, for which execution may issue if necessary.
(Emphasis added). Thus, although courts have characterized the right to possession of a corpse as a "property" or "quasi-property" right, the American Law Institute has recognized that this characterization is primarily a practical means to the end of allowing plaintiffs to recover for emotional distress resulting from mistreatment of a loved one's corpse.
