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Burr Oak Cemetery Lawsuits Begin

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By Brian Kumnick on July 16, 2009 1:18 PM

Recent Headlines Have Many Wondering: What Is Intentional Infliction of Emotional Distress?

In Chicago this week, eyes are on the gruesome story of the Burr Oak Cemetery, where several employees allegedly disinterred and dumped hundreds of bodies over the course of several years in a scheme to resell burial plots. The cemetery, historically a burial ground for many in Chicago's African-American population and the burial place of civil rights icon Emmett Till and musicians Dinah Washington and Willie Dixon, has been besieged in recent days by families wanting to know if loved ones' graves have been disturbed, according to the Chicago Tribune.

The stories are heartrending, and it is no surprise that several lawsuits have already been filed in the case. Such suits, in addition to seeking to compel the Burr Oak Cemetery to provide information about loved ones, might focus on enforcing a contract for the provision of a burial plot, or on holding the cemetery's owners responsible for negligently hiring or failing to supervise the workers who ran the scheme. But stories mentioning the suits also frequently reference claims for "intentional infliction of emotional distress." What is intentional infliction of emotional distress, and how does one prove it?
Intentional infliction of emotional distress (IIED) is what is known as an "intentional tort," like battery, trespassing, or assault. It is in some ways a lesser form of assault. Traditional assault claims require a plaintiff to prove that a defendant threatened imminent physical harm. But there are lots of forms of intimidation and harassment that don't rise to the level of "imminent physical threat." The IIED tort is supposed to provide an avenue of relief for offensive, harassing behavior that doesn't quite meet the definition of one of the traditional intentional torts.

But IIED is not so easy to prove. Typically, an IIED plaintiff must show three things: 1) that there was intentional or reckless conduct; 2) that it was "outrageous" or "extreme;" and 3) that the conduct caused the plaintiff extreme emotional distress.

IIED claims commonly fail in court. One problem is that "extreme emotional distress" can be a hard thing to prove, and even if proven, hard to quantify in terms of money damages, which are a typical remedy for an intentional tort.

But the bigger problem is that "outrageous" or "extreme" conduct is near-impossible to prove. Courts typically consider conduct "outrageous" only if it is truly out of societal bounds; if it wouldn't absolutely shock the conscience of an ordinary person, it is not outrageous. Most garden-variety rudeness, insults, or mild harassment simply cannot meet this test.

What about the Burr Oak Cemetery plaintiffs? In this case, as to the question of outrageous conduct, the plaintiffs might have a chance. Respect for the remains of the dead is an iron-clad principle in our society. Exhuming properly-buried bodies and dumping them in a heap is deeply offensive conduct, the kind that most anyone would consider outrageous. (Indeed, the state of Illinois may prosecute the Burr Oak crew for "dismembering a human body," a felony that can carry a 30-year sentence, a punishment that certainly reflects in part our cultural abhorrence for this sort of behavior.) In this case at least, the "extreme and outrageous" bar has probably been reached, and IIED claims could potentially succeed.

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