Binns

Defendant Westminster Memorial Park challenges an award to plaintiff Kenneth Bruce Binns for emotional distress arising from plaintiff's discovery that defendant had negligently interred the remains of a stranger in a family burial plot intended for plaintiff. Defendant also challenges the sufficiency of the evidence to support the trial court's finding he suffered serious emotional distress. Finally, defendant contends emotional distress damages should not have been awarded because a reasonable person in plaintiff's situation would be able to adequately cope with the knowledge that a stranger had been buried in his or her burial plot.

(1) We conclude defendant's interment of plaintiff's mother in a plot adjacent to the space reserved for plaintiff created a special relationship with plaintiff giving rise to a duty to avoid mistakenly interring a stranger in his plot. Because burying a stranger in a family plot adjacent to one's parents may engender intense feelings based on religious, emotional or ethical concerns, it is foreseeable serious emotional distress could result. We limit defendant's duty only to situations where at least one family member has been…

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 702 OPINION Defendant Westminster Memorial Park challenges an award to plaintiff Kenneth Bruce Binns for emotional distress arising from plaintiff's discovery that defendant had negligently interred the remains of a stranger in a family burial plot intended for plaintiff. Defendant also challenges the sufficiency of the evidence to support the trial court's finding he suffered serious emotional distress. Finally, defendant contends emotional distress damages should not have been awarded because a reasonable person in plaintiffs situation would be able to adequately cope with the knowledge that a stranger had been buried in his or her burial plot. We conclude defendant's interment of plaintiff's mother in a plot adjacent to the space reserved for plaintiff created a special relationship with plaintiff giving rise to a duty to avoid mistakenly interring a stranger in his plot. Because burying a stranger in a family plot adjacent to one's parents may engender intense feelings based on religious, emotional or ethical concerns, it is foreseeable…

I am more than a little surprised to find myself writing a dissent in this case. A large part of me feels a dissent is unnecessary. My colleagues have tailored a majority opinion that is mathematically discrete. Litigants not named Binns will have difficulty bringing themselves within the rule of Binns v. Westminster Memorial Park. But they have created tort liability where, to my mind, none previously existed. And I cannot understand why. Therefore, I must respectfully dissent. It seems to me we started out with a perfectly intelligible and easily applicable rule. We started with the rule of Christensen v. Superior Court (1991) 54 Cal.3d 868 [ 2 Cal.Rptr.2d 79 , 820 P.2d 181 ]. Christensen was based upon the premise distilled from earlier precedent that conduct amounting to a breach of contract becomes tortious only when it also violates an independent duty arising from principles of tort law. In applying this rule to funerary/mortuary services, it held that such an independent duty arises when one party agrees with another to handle the remains of a deceased loved one. It did not hold that such a duty arises when someone agrees to provide a plot for burial, and I see no reason…