inches below the earth in the same grave with another
corpse. 12 The Supreme Court denied liability under a
breach of contract theory for failing to bury the child according to the agreement because the plaintiffs based their
claim for damages on mental suffering. 13 Nevertheless, the
court went on to conclude that “it would shock the sensi-bilities to hold that there was no remedy for such a wrong,”
noting that although the tort of wrongful interference had
traditionally been related to the mutilation of a corpse, an
improper burial equated to a mutilation for purposes of
raising an actionable claim. 14
Interest in the tort of interference with a dead body
was resurrected in 1925 when the Supreme Court upheld a
mother’s claim against an undertaker for withholding her
son’s corpse as collateral for payment of funeral expenses. 15
While the court noted that a party cannot recover for mental
suffering based solely on a claim for negligence, intentionally
withholding the body from proper burial constituted a willful
misuse of the body. 16 The court reasoned that willful delay
in providing a burial was equivalent to improper burial for
purposes of the tort of interference—once again focusing on
the emotional effect of the mistreatment on others rather than
the extent of the misuse itself. 17
Claims for tortious interference with a dead body have
been few, and not much has changed in the case law in Washington over the past century as compared with other states. 18
This is, in part, because the Washington Supreme Court has
expressly refused to adopt the Restatement (Second) of Torts
§868, which permits recovery of emotional distress damages
for negligent interference with a dead body. 19 Therefore, as a
matter of law in Washington, a claim for emotional distress
cannot be pursued in an action alleging negligent mishandling of human remains. 20
Ultimately, the parameters of misuse that may give rise to a
cause of action for tortious interference with human remains
are not well defined. As a practical matter, the easiest way
to understand what constitutes tortious of interference with
human remains is by staying apprised as to current case law
clarifying what does not. NWL
S. KAREN BAMBERGER is a shareholder and chair
of the defense litigation practice group at Betts,
Patterson & Mines, P.S. where she focuses her
practice primarily in the areas of product liabil-
ity and complex litigation. She can be reached at kbamberger@
EMILY ANN ALBRECHT is an associate at Betts,
Patterson & Mines, P.S. where she focuses her
practice on insurance defense, product liability,
and asbestos litigation. She can be reached at
1. P. Jackson, The Law of Cadavers at 31. Granted, the burial had to be in
a churchyard or other consecrated area (ecclesiastical rules permitting) and a church service performed – it was not possible to choose
burial but reject the service (or vice versa) – which naturally resulted
in great tension between the Established Church and other denominations, ultimately leading to the secularization of cemeteries.
2. Adams v. King County, 164 Wn.2d 640, 658, 192 P.3d 891 (2008); Reid
v. Pierce County, 136 Wn.2d 195, 961 P.2d 333 (1998).
3. Adams, 164 Wn.2d at 658.
4. Id. (citing Herzl Congregation v. Robinson, 142 Wash. 469, 471, 253 P. 654
(1927) (recognizing generally that “there is a right of custody over, and
interest in, a dead body, and the disposal of a body”)); Wright v. Beardsley,
46 Wash. 16, 19, 89 P. 172 (1907) (“the action is for a wrong against the
feelings of the plaintiffs inflicted by a wrongful and improper burial of
their dead; in other words, a tort or injury against the person.”).
5. Adams, 164 Wn.2d at 658.
6. RCW 68.50.160( 3) (determining right to control disposition).
7. Adams, 164 Wn.2d at 658 (quoting Gadbury v. Bleitz, 133 Wash. 134,
233 P.299 (1925)). See, e.g., Whitney v. Cervantes, 182 Wn. App. 64,
328 P.3d 957 (2014).
9. Wright, 46 Wash. at 20.
10. Adams, 164 Wn.2d at 659.
11. Wright, 46 Wash. at 20.
12. Id. at 17.
14. Id. (recognizing that a cause of action for wrongful mutilation “applies
as well to a case such as the one at bar where the wrong consists of the
manner of burial”).
15. See e.g. Gadbury, 133 Wash. 134.
16. Id. at 137.
17. Id. at 137-38 (“The misuse in one case may be greater in degree, but
nevertheless is a misuse.”)
18. See Ryan Seidemann, "How Do We Deal With All The Bodies? A Review of Recent Cemetery and Human Remains Legal Issues," U. BALT.
3 J. LAND DEV. 1 (2013).
19. See Whitney v. Cervantes, 182 Wn. App. 64; Adams, 164 Wn.2d at 656-
57; Restatement (Second) of Torts §868 (1979).
CLAIMS FOR TORTIOUS INTERFERENCE WITH A DEAD BODY
HAVE BEEN FEW, AND NOT MUCH HAS CHANGED IN THE CASE
LAW IN WASHINGTON OVER THE PAST CENTURY.