This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







David Gooch, et al.,





North Country Regional Hospital,



Filed March 28, 2006

Affirmed in part, reversed in part, and remanded

Hudson, Judge


Beltrami County District Court

File No. CX-03-2077


Tom Kuesel, 518 Beltrami Avenue, Bemidji, Minnesota 56601; and


Wilbur W. Fluegel, Fluegel Law Office, 150 South Fifth Street, Suite 3475, Minneapolis, Minnesota 55402 (for appellants)


Katherine A. McBride, Rodger A. Hagen, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, Minnesota 55402 (for respondent)


            Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Hudson, Judge.


U N P U B L I S H E D   O P I N I O N


This is an appeal from the district court’s grant of judgment notwithstanding the verdict (JNOV) dismissing appellant’s claim for wrongful interference with a dead body; vacating the damage award; or, in the alternative, granting a new trial on the issue of damages.  Because there is sufficient evidence to support the jury’s finding of wanton misconduct by the hospital, we reverse the district court’s grant of JNOV.  Further, because the district court did not abuse its discretion in determining that substantial passion or prejudice resulted from the misconduct of appellants’ counsel during closing arguments, we affirm the district court’s grant of a new trial on the issue of damages and remand.


            In January 2003, respondent North Country Regional Hospital (the hospital) induced delivery of appellant Amber Gooch’s fetus, which had died in utero.  After delivery, the hospital wrapped the fetus in a blanket and placed him in a small basket.  The fetus was six and one-half inches long, weighed two ounces, and had ten fingers and ten toes.  The hospital encouraged appellants Amber and David Gooch to hold the fetus, name him, and keep him in their hospital room overnight so that they could bond with him.  The hospital gave appellants three options for dealing with the fetus: a private funeral, cremation, or the fetus could be kept in the hospital morgue until spring when it could be buried in a shared casket with other fetal remains.  The hospital, in conjunction with a local funeral home, had created the shared-casket burial program as a way for parents to bury a fetus in a dignified manner.[1]  Appellants chose the shared-casket option.

            The next morning, hospital staff took the fetus to the hospital morgue.  The histology technician specifically remembered bringing the fetus to the pathologist.  In accordance with hospital procedure, upon completion of the pathologist’s work, the remains are placed in a plastic container and the container is labeled.  The hospital identifies the individual containers by placing a sticky label on them.  The containers are kept in the pathology department until a funeral-home representative picks them up—usually a day or so later—for burial with the remains of other fetuses.

            In May 2003, after several prior inquiries, appellants called the funeral home to inquire about the date of the funeral service.  The funeral-home director informed appellants that the funeral home had not received the fetus belonging to appellants.  Appellants then called the hospital.  It is undisputed that the hospital could not locate the fetus and could not account for what had happened to the fetus.  The director of nursing at the hospital told appellants that the fetus had probably been cremated. 

            Three days after learning that the fetus was lost, appellants met with hospital representatives, including the hospital chaplain.  The hospital chaplain speculated that the fetus was likely sent to Fargo, North Dakota, with other surgical byproducts for incineration.  The chaplain made this statement even though the pathology technician responsible for disposal of the hospital’s human tissue had told the chaplain that he was certain that he would not dispose of any fetus that had fingers and toes in that manner.  The hospital later sent appellants a letter expressing sorrow for their loss and apologizing for “preclude[ing] [appellants] from fulfilling the grieving and burial process” they had chosen.

Appellants sued to recover emotional-distress damages for the hospital’s “negligent[ ] and careless[ ]” loss of the fetus.  In appellants’ memorandum in response to the hospital’s motion to dismiss, appellants clarified their cause of action as tortious interference with a dead body.  In November 2004, a jury returned special verdicts finding that the hospital was both “negligent” and “willful or wanton” in having permanently misplaced the fetus and that the hospital’s wrongful conduct was a direct cause of any damages suffered by appellants.  The jury awarded appellants $150,000 in damages. 

The hospital moved for JNOV or, in the alternative, a new trial on the issue of damages.  In an order dated February 1, 2005, the district court granted the hospital’s motion for JNOV; vacated the award of damages; and, in the alternative, granted the hospital’s motion for a new trial on the issue of damages.  The district court entered judgment dismissing the complaint with prejudice.  This appeal follows.



As a threshold issue, the hospital asserts that appellants’ cause of action is, in actuality, an action for negligent infliction of emotional distress (NIED).  We disagree.  Tortious interference with a dead body[2] has been a valid—albeit rare—cause of action in Minnesota since its adoption over a century ago by the Minnesota Supreme Court in the seminal case of Larson v. Chase, 47 Minn. 307, 50 N.W. 238 (1891).  In Larson, the plaintiff sued for the unlawful dissection of her deceased husband’s body, alleging only mental suffering and nervous shock as damages. 308, 50 N.W. at 238.  The supreme court rejected the argument that a wife had no legal interest or right in the body of her deceased husband, holding that the right of possession of a dead body for preservation and burial belongs to the decedent’s surviving spouse or next of kin, and that the law both recognizes and protects this right.  Id. at 309–10, 50 N.W. at 239.  The supreme court stated that “where the wrongful act constitutes an infringement on a legal right, mental suffering may be recovered for, if it is the direct, proximate, and natural result of the wrongful act.” 311, 50 N.W. at 239–40.  Writing for the court, Justice William Mitchell concluded that “the real and substantial wrong was . . . the indignity to the dead.”  Id. at 312, 50 N.W. at 240.

            It is unclear in Minnesota, however, whether a claim for wrongful interference with a dead body can be supported by a showing of mere negligence, or whether it requires a showing of willful or wanton misconduct similar to an NIED case.  Compare Larson v. Chase, 47 Minn. 307, 311, 50 N.W. 238, 239–40 (1891)(requiring only a “wrongful act” that infringes on a legal right), and Lindh v. Great N. Ry. Co., 99 Minn. 408, 410, 109 N.W. 823, 824 (1906) (holding that a common carrier’s “willful and negligent” action of exposing a casket to rain, thereby causing disfigurement to the body, was a valid cause of action sounding in tort), and Sworski v. Simons, 208 Minn. 201, 206, 293 N.W. 309, 311 (1940) (stating that parents are entitled to their son’s body “in the condition it was in at death and to bury it in that condition” and holding the coroner liable to the parents for wrongful interference by ordering the body embalmed without authority from the parents), with Beaulieu v. Great N. Ry. Co., 103 Minn. 47, 49, 114 N.W. 353, 353–54 (1907) (recognizing that mental-anguish damages were recoverable in those “willful wrongs” when a legal right has been invaded, but concluding that such damages were not recoverable in actions sounding in breach of contract except for exceptional cases).  We attribute this lack of clarity, in part, to the fact that these cases arose before the evolution of the law that replaced many of the intentional torts with the developing rule of “negligence” as the measure of the duty of care owed in tort.[3]



Appellants argue that the district court erred in granting the hospital’s motion for JNOV because the record supports the jury’s finding that the hospital’s actions amounted to willful or wanton misconduct. 

When considering a motion for JNOV, the district court must: (1) take into account all of the evidence in the case; (2) view that evidence in a light most favorable to the jury verdict; and (3) not weigh the evidence or judge the credibility of the witnesses.  Lamb v. Jordan, 333 N.W.2d 852, 855 (Minn. 1983).  A district court should grant a motion for JNOV when, viewing the evidence in the light most favorable to the nonmoving party, the verdict is manifestly against the entire evidence or when, despite the jury’s findings of fact, the moving party is entitled to judgment as a matter of law.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  If a jury verdict has any reasonable evidentiary support, both the district court and this court must accept it as final.  Brubaker v. Hi-Banks Resort Corp., 415 N.W.2d 680, 683 (Minn. App. 1987), review denied (Minn. Jan. 28, 1988).  The decision to grant or deny a motion for JNOV is a question of law, which we review de novo.  Diesen v. Hessburg, 455 N.W.2d 446, 449 (Minn. 1990).

In its February 1, 2005 order, the district court granted JNOV, finding that a cause of action for interference with a dead body can be maintained only if there is some evidence of a willful or wanton wrong.  The district court also found that because appellants had pleaded and proved only negligence, the district court erred in submitting to the jury the question of willful-and-wanton misconduct. 

Here, during the trial, the district court adopted the willful-and-wanton requirement from Lickteig v. Alderson,556 N.W.2d 557, 560 (Minn. 1996), which instructs that in Minnesota, there are only three categories of tort cases in which emotional-distress damages may be recovered: when a plaintiff suffers a “physical injury” resulting from another’s negligence; when a plaintiff is in the “zone-of-danger” and proves physical manifestation of the emotional harm; and when a plaintiff suffers a “direct invasion of the plaintiff’s rights such as that constituting slander, libel . . . or other like willful, wanton, or malicious conduct.”  556 N.W.2d at 560 (quotation omitted).  The district court asked the jury to determine if the hospital’s actions amounted to “willful or wanton misconduct.”  In its jury instructions, the district court correctly advised the jury that “a person behaves willfully when he or she knows or has reason to know that an act is prohibited by a policy, rule, regulation, statute, or law and intentionally does it anyway.”  See 4 Minnesota Practice, CIVJIG 25.40 (1999).  Based on our review of the record, there is no evidence of any conduct by hospital personnel that amounted to intentional, willful misconduct.  Accordingly, we agree with the district court’s determination that the jury could not have reasonably found willfulness. 

The district court also instructed the jury that wanton misconduct is “[a]n act, or failure to act when there is a duty to do so, in reckless disregard of another’s rights, coupled with the knowledge that injury will probably result.”  See Black’s Law Dictionary 1014 (7th ed. 1999).  The jury was correctly instructed that it could draw reasonable inferences from circumstantial evidence.  Contrary to the district court, we conclude that there is some evidence from which a jury could have found wanton conduct by the hospital. 

First, the record indicates that the hospital had physical possession of the fetus and that the fetus was last seen in the pathology department.  When appellants later inquired about the fetus, the hospital could not find the fetus.  Hospital procedure for a fetus of the size of appellants’ son was to place the remains into a quart-sized plastic container and either put it in a refrigerator, or in a cabinet in the pathology department for eventual pickup by local funeral-home representatives.  Viewing the evidence in the light most favorable to the jury’s verdict, the hospital never transferred the fetus into the custody and care of the funeral home.  Although there is no evidence in the record indicating exactly what happened to the fetus, it is reasonable to conclude that someone at the hospital acted, causing the fetus to be removed from the pathology area, or failed to act, allowing it to be removed improperly. Any of the speculated dispositions—whether the fetus was sent for cremation or was incinerated—required some act or failure to act by the hospital.

Secondly, there was sufficient proof that the act (or failure to act) demonstrated reckless disregard of another’s rights.  Larson v. Chase and its progeny provide parents with a legal right to the body of their child for the purpose of a proper and dignified burial.  See Larson v. Chase, 47 Minn. 307, 310, 50 N.W. 238, 239 (1891) (upholding a surviving wife’s legal right to the possession of her husband’s dead body for purposes of preservation and burial); see also Sworski v. Simons, 208 Minn. 201, 205–06, 293 N.W. 309, 311 (1940) (extending the principles of Larson to a parent’s right to the body of their dead son).  The hospital had procedures in place to provide for the shared-casket disposition selected by appellants.  The hospital had reason to know that permanent disposition of the body in any manner other than the one chosen by appellants would create a high risk of harm to them.  And certainly the hospital had reason to know that losing the fetus completely, without any explanation, would reasonably cause injury to the next of kin.  See 4 Minnesota Practice, CIVJIG 25.37 (1999) (defining a reckless actor as a person with reason to know that an action creates a high risk of harm to another who proceeds to act in deliberate disregard of or indifference to that risk); see also Larson, 47 Minn. at 312, 50 N.W. at 240 (stating that “mental suffering and injury to the feelings would be ordinarily the natural and proximate result of knowledge that the remains of a deceased husband had been mutilated, is too plain to admit of argument”). The hospital not only failed to preserve the fetus for burial in the manner selected by appellants, but the hospital’s actions also permanently deprived appellants of any ability to bury the fetus.  A jury could reasonably have found that the hospital’s failure to safeguard the fetus was in deliberate disregard of, or indifference to, appellants’ right to bury their son.  Thus, the record supports the jury’s determination that the hospital acted in reckless disregard of appellants’ rights.

Based on this evidence and viewed in the light most favorable to the jury verdict, we conclude that the jury’s finding of wantonness was reasonably supported by the evidence, and the district court erred in granting respondent’s motion for JNOV.  Because of our holding here, we need not address appellants’ second argument that JNOV was also improper because there was evidence to support the jury’s verdict that the hospital’s conduct was also negligent and that we should adopt the Restatement (Second) of Torts, which allows for recovery based on negligent interference with a dead body.


            In addition to granting JNOV, and in anticipation of a potential appeal, the district court alternatively granted a new trial on the issue of damages because of improper remarks of appellants’ counsel during closing arguments.  The district court found that the damage award of $150,000 had been influenced by the passion and prejudice of the jury.  Appellants argue that the district court abused its discretion by alternatively granting respondent’s motion for a new trial on the issue of damages because no prejudice was shown from the alleged improper closing argument.

The decision to grant a new trial lies almost entirely within the sound discretion of the district court, and we will not disturb that decision absent a clear abuse of discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990); Ellingson v. Burlington N. R.R., 412 N.W.2d 401, 402–03 (Minn. App. 1987), review denied (Minn. Nov. 13, 1987).  The district court may grant a new trial for, inter alia, “[e]xcessive . . . damages, appearing to have been given under the influence of passion or prejudice.”  Minn. R. Civ. P. 59.01(e).  The district court is in a better position than this court to determine whether substantial passion or prejudice resulted from the misconduct it viewed.  Ellingson, 412 N.W.2d at 404. 

During closing arguments, counsel for appellants stated that the hospital “generate[s] enormous amounts of money” providing care for “our loved ones.”  Because the hospital’s revenue was irrelevant to this case, the court gave a curative jury instruction that the hospital was a non-profit organization.  Also in closing, counsel for appellants characterized the hospital’s after-the-fact actions as reckless when the chaplain told appellants that the fetus may have been incinerated, asking the jury to consider “[t]he horrific imagery that was left in [appellants’] minds when they were told their precious little son had been consumed by flames.”  The district court found that counsel’s remarks were clearly intended to appeal to the jurors’ passions and emotions.

Appellants fail to demonstrate how the district court abused its discretion by alternately granting the hospital’s motion for a new trial on the issue of damages.  Neither the hospital’s profits nor the chaplain’s speculative remarks are relevant to appellants’ cause of action.  Because we cannot determine what amount of money the jury may have attributed to counsel’s appeal to the jurors’ emotions, we affirm the district court’s decision to grant a new trial on the issue of damages and remand for that determination.

Affirmed in part, reversed in part, and remanded.

[1] The funeral home has buried as few as five, and as many as nineteen, fetuses in one shared casket.  The burials usually take place twice a year—once in the spring and once in the fall.

[2] On appeal, both parties characterize appellants’ fetus as a body or person for purposes of an interference-with-a-dead-body action.  Accordingly, in deciding this case, we likewise consider the fetus to be a dead body without concluding or deciding whether it meets a legal definition of personhood.

[3] In Sworski v. Simons, 208 Minn. 201, 293 N.W. 309 (1940), for example, the court effectively concluded that there must be evidence of some willful or wanton wrong.  Sworski, 208 Minn. at 208, 293 N.W. at 312.  In so doing, the court cited § 868 of Restatement (First) of Torts (1939), which at the time provided that:


A person who wantonly mistreats the body of a dead person or who without privilege intentionally removes, withholds or operates upon the dead body is liable to the member of the family of such person . . . .


Id. at 205, 293 N.W. at 311.