Marian E. WASHINGTON, Appellant, v. JOHN T. RHINES COMPANY, Appellee, 646 A.2d 345

TERRY, Associate Judge: This case raises an issue of first impression in the District of Columbia, namely, whether this jurisdiction recognizes—or should recognize—the tort of negligent infliction of emotional distress arising from the alleged mishandling of a dead body. Answering this question in the negative, the trial court dismissed the complaint of appellant Marian Washington under Super.Ct.Civ.R. 12(b)(6) for failure to state a claim upon which relief could be granted. Before this court appellant argues that our decision in Williams v.

Baker, 572 A.2d 1062 (D.C.1990) (en banc), in no way forecloses her present claim, and that this jurisdiction has long recognized a cause of action in the surviving spouse for the negligent mistreatment of a corpse. She relies principally on Steagall v. Doctors Hospital, 84 U.S.App. D.C. 214, 171 F.2d 352 (1948). We hold, however, that Steagall does not support her claim and that Williams bars it. We therefore affirm the trial court’s dismissal of appellant’s complaint. I On June 21, 1990, Mrs. Washington’s husband, Vernon W. Washington, died in the District of Columbia. Later that day Mrs.

Washington contracted with appellee John T. Rhines Company (“Rhines”), a funeral home in the District of Columbia, to prepare, embalm, and dress Mr. Washington’s body. Pursuant to the agreement, Rhines also transported the casket containing the body to National Airport. From there it was shipped to a funeral home in El Paso, Texas, for an open-casket memorial service and eventual burial in El Paso National Cemetery. According to Mrs.

Washington’s complaint, when the casket arrived in El Paso on June 25, it was discovered that the clothing and the inside of the shipping case were drenched with fluid; there was an offensive odor of embalming and body fluids; there were extreme skin slips, blisters, and discolorations on several parts of the body; the body had begun to turn green and was rapidly decomposing; there was swelling in the face and neck areas; and a catheter tube which had been inserted in the deceased’s body during his hospitalization had not been removed. A representative of the El Paso funeral home informed Mrs.

Washington of the condition of her husband’s body. The mortician also asked Mrs. Washington to examine the body herself so that she could authorize the funeral home to re-embalm it and make it presentable for open-casket viewing. With Mrs. Washington’s permission, the funeral home proceeded to disinfect, re-embalm, and redress Mr. Washington’s body, and the open-casket service took place as scheduled. Despite these efforts, however, the body still possessed “a somewhat bloated and distorted appearance at the service.” Some time later Mrs.

Washington filed a complaint against Rhines in the Superior Court alleging that, as a result of Rhines’ negligence during the first embalming, she had been “prevented from taking possession and proceeding to bury the body of her husband in an orderly manner.” She also claimed that Rhines’ negligence had caused her to view her husband’s body in a deteriorating state when she was asked to authorize the re-embalming in El Paso. As a result, Mrs.

Washington alleged, she “suffered severe nervous shock and great mental and emotional pain, anguish, and stress for a long period of time,” injuries for which she sought compensatory damages. Rhines moved to dismiss the complaint under Rule 12(b)(6) for failure to state a claim upon which relief could be granted. In support of its motion, Rhines argued that there was no basis under District of Columbia law to award Mrs. Washington damages for emotional distress, in that she did not meet the narrow standard established in Williams v. Baker, supra. Mrs.

Washington argued in response that her claim “stems specifically from the alleged mishandling of her husband’s dead body,” and that the District of Columbia and other jurisdictions have recognized such claims as exceptions to the general rule governing negligently caused emotional distress. The trial court granted the motion and dismissed her complaint, and Mrs. Washington noted this appeal. II Mrs. Washington urges this court to recognize a cause of action for negligently inflicted emotional distress resulting from the mishandling of a corpse.

She observes that the District of Columbia already recognizes a legal right in the surviving spouse of a dead person to possess, preserve, and bury the decedent’s body. Relying on Steagall v. Doctors Hospital, supra, she asks us to take the next step and permit the surviving spouse to recover damages for emotional distress whenever the right recognized in Steagall is negligently violated. Courts in the District of Columbia historically have cast a wary eye on emotional distress claims.

Indeed, until 1990, the solidly established case law was that a person could recover damages for negligent infliction of emotional distress only if that person also sustained a physical injury at the same time. Asuncion v. Columbia Hospital for Women, 514 A.2d 1187, 1188-1189 (D.C.1986); District of Columbia v. Smith, 486 A.2d 1294, 1296 (D.C.1981); Gilper v. Kiamesha Concord, Inc., 302 A.2d 740, 745 (D.C.1973); Perry v. Capital Traction Co., 59 App.D.C. 42, 44, 32 F.2d 938, 940, cert. denied, 280 U.S. 577, 50 S.Ct. 31, 74 L.Ed. 627 (1929).

Moreover, under the old standard, plaintiffs were also required to demonstrate that the emotional distress flowed directly from the physical injury. Asuncion, supra, 514 A.2d at 1189 n. 1. The rationale underlying this stringent rule was stated in Clark v. Associated Retail Credit Men, 70 App.D.C. 183, 185, 105 F.2d 62, 64 (1939): The law does not, and doubtless should not, impose a general duty of care to avoid causing mental distress. For the sake of reasonable freedom of action, in our own interest and that of society, we need the privilege of being careless whether we inflict mental distress on our neighbors.

Recognizing that a plaintiff may sometimes suffer serious emotional injury even without any accompanying physical impact, the court in Williams v. Baker slightly relaxed the rule that had prevailed until 1990. Sitting en banc, the court adopted the so-called “zone of danger” test followed in a number of other jurisdictions.

We held in Williams: [I]f the plaintiff was in the zone of physical danger and was caused by defendant’s negligence to fear for his or her own safety, the plaintiff may recover for negligent infliction of serious emotional distress and any resultant physical injury, regardless of whether plaintiff experienced a physical impact as a direct result of defendant’s negligence. 572 A.2d at 1067. Although it marked a significant change from the past, Williams was not a radical departure from the strict approach that had always been taken by this court in evaluating emotional distress claims.

Indeed, the court in Williams considered and rejected a broader “foreseeability” test for assessing emotional distress claims by persons who witnessed injury to others but were themselves outside the zone of danger. In so doing, we examined cases from courts in California and Hawaii which had embraced, but later retreated from, expansive applications of the foreseeability standard. We concluded: The experience of both California and Hawaii confirms our view that this jurisdiction should not cast itself adrift on a sea of infinite foreseeability, subject only to such arbitrary limitation as we should impose.

We recognize that the issue of whether a plaintiff can recover damages for fear of harm to a third person is a question of policy for the court, not one to be determined on a case-by-case determination of whether the injury was foreseeable. Id. at 1072. The court’s rejection of the plaintiffs claim in Williams shows just how strict the zone of danger test really is. In Williams, during the course of an examination in a hospital emergency room, a physician failed to discover that his three-year-old patient suffered from acute epiglottitis and released the boy into his mother’s care.

Later that evening the boy stopped breathing and collapsed on the floor. He was immediately taken by ambulance to a hospital, where he spent a day and a half in intensive care and was hospitalized for a total of ten days. The boy’s mother filed a civil action for medical malpractice and negligent infliction of emotional distress on her own behalf and on behalf of her son, but the trial court granted

summary judgment against the mother on her claim for emotional distress. On appeal this court en banc, applying the zone of danger test, affirmed the trial court’s dismissal of that claim, holding that because the mother herself was not endangered by the physician’s misdiagnosis, she could not recover damages for emotional distress. Id. at 1073. Cases since Williams have reiterated its holding that the zone of danger test is the sole means for assessing a claim for damages for negligently inflicted emotional distress. For instance, in Jones v.

Howard University, 589 A.2d 419 (D.C.1991), we held that a plaintiff could maintain an action for negligently inflicted emotional distress in the absence of any physical injuries or physical manifestations, so long as the claimed emotional distress was both serious and verifiable. A necessary element of the plaintiffs claim, however, was the fact that she was within the zone of danger when she suffered the alleged emotional injury. Id. at 424; see also Cauman v.

George Washington University, 630 A.2d 1104, 1106 (D.C.1993) (disallowing claim for emotional distress in wrongful birth case because parents’ complaint did not allege that they were physically endangered by doctors’ negligence); McKethean v. Washington Metropolitan Area Transit Authority, 588 A.2d 708, 718 (D.C.1991) (affirming

summary judgment on emotional distress claim when it was undisputed that plaintiff was “at least one block away from the scene of the accident” giving rise to the alleged mental anguish, and thus outside the zone of danger). We readily conclude from these cases, and of course from Williams, that Mrs. Washington has failed to state a claim for negligently inflicted emotional distress cognizable under District of Columbia law. A glance at cases from other jurisdictions reaffirms our view that the trial court properly dismissed Mrs. Washington’s claim. For example, in Courtney v. St.

Joseph Hospital, 149 Ill.App.3d 397, 102 Ill.Dec. 810, 500 N.E.2d 703 (1986), appeal denied, 114 Ill.2d 544, 108 Ill.Dec. 415, 508 N.E.2d 726 (1987), the Appellate Court of Illinois was asked in an interlocutory appeal whether the “zone of physical danger” rule foreclosed a claim for emotional distress based on the negligent mishandling of a corpse. The court held that the claim was barred. 149 Ill.App.3d at 403, 102 Ill.Dec. at 814, 500 N.E.2d at 707.

As an intermediate appellate court with no authority to create new causes of action, the court expressed regret at having to reject the plaintiffs claim, but nonetheless held that the zone of danger test, as a “strictly construed” exception to the impact rule, was the only route to recovery for plaintiffs seeking damages for negligently inflicted emotional distress. Id. at-, 102 Ill.Dec. at 812, 500 N.E.2d at 705. A number of courts, in cases similar to this one, have limited recovery to situations in which the defendant acted recklessly, willfully, or intentionally in its mistreatment of the decedent’s body.

See Fuller v. Marx, 724 F.2d 717, 719 (8th Cir.1984) (under Arkansas law, plaintiff can recover for emotional distress without physical injury only when the harm was caused by willful or intentional misconduct); Burgess v. Perdue, 239 Kan. 473, 479-80, 721 P.2d 239, 245 (1986) (affirming

summary judgment for defendant when plaintiff’s evidence showed negligent, rather than intentional or malicious, mistreatment of decedent’s body); Daniels v. Adkins Protective Services, Inc., 247 So.2d 710, 711 (Miss.1971) (requiring showing of malicious or intentional conduct in order to recover damages for emotional distress in absence of physical injury).

This standard closely resembles our separate tort of intentional infliction of emotional distress, which requires proof of “(1) ‘extreme and outrageous’ conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff ‘severe emotional distress.’ ” Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (D.C.) (citations omitted), cert. denied, 459 U.S. 912, 103 S.Ct. 221, 74 L.Ed.2d 176 (1982). Since Mrs. Washington’s complaint did not even allege that Rhines’ behavior was intentional or malicious, however, we see no way for her to recover on this theory. Williams v.

Baker notwithstanding, Mrs. Washington asserts that under District of Columbia law, a surviving spouse has a separate cause of action for the negligent mishandling of a corpse. She relies mainly on Stea-gall v. Doctors Hospital, supra, in which a widow and two adult sons sued the defendant hospital for allegedly performing an unauthorized autopsy on the decedent. Concluding that the widow possessed the sole right to bring the suit, the trial court dismissed the claim with respect to the two sons.

In affirming that dismissal, the Court of Appeals held: [T]here exists in our law a right to possess, preserve and bury, or otherwise to dispose of, a dead body; that ... right belongs to the surviving spouse, if any, living in the normal relation of marriage, and, if none such, then to the next of kin in the order of their relation to the decedent; and [a] violation of that right is a tort. It follows that in the case at bar the widow had the sole right of action. 84 U.S.App.D.C. at 215, 171 F.2d at 358.

Steagall did not identify or describe that right of action, however, and nothing in the Steagall opinion even suggested that the surviving spouse was entitled to damages for emotional distress as a result of the unauthorized autopsy. We reiterate what we said in District of Columbia v. Smith, supra: that “Steagall simply decided that a surviving spouse has the primary right of action. Anything pertaining to the scope or definition of the tort involved must necessarily be dicta.” 436 A.2d at 1298 (footnote omitted); see also Davis v.

United States Dep’t of the Army, 602 F.Supp. 355, 360 (D.Md.1985) (applying Smith to a case involving District of Columbia law for proposition that Steagall does not create an actionable tort claim in the surviving spouse). Following Smith, which is binding on us, we read Steagall only as vesting in the surviving spouse — as opposed to all other family members — the primary right to “possess, preserve and bury, or otherwise dispose of’ the body of the decedent. Steagall, 84 U.S.App.D.C. at 215, 171 F.2d at 353. The recent decision in Mackey v.

United States, 303 U.S.App.D.C. 422, 8 F.3d 826 (1993), does not support Mrs. Washington’s more expansive reading of Steagall. In Mackey the plaintiffs aunt died while in the care of District of Columbia General Hospital (“D.C.General”). Six weeks elapsed, however, before either D.C. General or Saint Eliza-beths Hospital, where the aunt had been a patient before being sent to D.C. General, notified the plaintiff of her aunt’s death.

The plaintiff, as next of kin, then sued the District of Columbia and the United States for, inter alia, negligent infliction of emotional distress and negligent interference with the right to possess and dispose of her aunt’s body. The trial court, trying the claims against the United States without a jury, awarded the plaintiff $10,000 for negligent interference with the right to possess her aunt’s body, but refused to award further damages on her claim for emotional distress. The Court of Appeals affirmed that ruling, noting that the “zone of danger” rule adopted in Williams v.

Baker, supra, was the only exception to this jurisdiction’s otherwise strict treatment of claims for emotional injury. Remarking that “[t]he District of Columbia’s recovery rule for negligently inflicted emotional distress is as clear as it is stringent,” the Mackey court correctly observed that this court “has decisively expressed its hostility to broadening the scope of the Williams rule.” Id. at 427, 8 F.3d at 831, citing Cauman v. George Washington University, supra.

We note that in Mackey the Court of Appeals, in affirming the trial court’s judgment on the negligent interference claim, rejected the appellee’s argument that this court had “repudiated” Steagall in District of Columbia v. Smith, supra. See Mackey, 303 U.S.App.D.C. at 426 n. 2, 8 F.3d at 830 n. 2. We agree with the Mackey court in that respect; Smith and Steagall are not inconsistent.

Steagall holds that a surviving spouse has a right to “possess, preserve and bury, or otherwise dispose of, a dead body ... and that violation of that right is a tort” for which the surviving spouse has “the sole right of action.” 84 U.S.App.D.C. at 215, 171 F.2d at 353. What Smith tells us is simply that the exact nature of this “right of action” is not revealed by Steagall. Reading the two cases together, however, we think it is clear that the Steagall right of action relates only to the surviving spouse’s right of possession and burial.

There is nothing in the Steagall opinion to suggest that the right of action, whatever it may be, extends beyond vindication of the right to possess, and eventually to bury, the decedent’s body. Given our definitive holding in Williams v. Baker, we conclude that Steagall cannot be read so broadly as to encompass Mrs. Washington’s claim for damages. Thus we hold that, if allowed to proceed with her claim, Mrs. Washington would be unable to prove any set of facts entitling to her to relief under the law of the District of Columbia.

The trial court’s dismissal of her complaint under Rule 12(b)(6) is therefore Affirmed. . In reviewing a dismissal under Rule 12(b)(6), we must read appellant’s complaint in the light most favorable to her claim and accept her allegations as true. E.g., Haymon v. Wilkerson, 535 A.2d 880, 882 (D.C.1987); McBryde v. Amoco Oil Co., 404 A.2d 200, 202 (D.C.1979). Accordingly, our

summary of the facts is based on the allegations in her complaint. . The court left unanswered the question of "whether mental distress, to be compensable, must result in physical injury,” but suggested that such a requirement might not be necessary if the claimed distress were serious and verifiable. Williams, supra, 572 A.2d at 1068. .

In support of her claim for emotional distress, the mother claimed that she suffered extreme anxiety from the time her son stopped breathing through the subsequent hospitalization; that she could not eat or sleep for several days after the incident; that for several months thereafter she suffered from bouts of sleeplessness, severe stomach problems, nausea and diarrhea; that she continues to worry about the possibility of brain damage to her child; and that she has been under the care of a psychiatrist. Williams, supra, 572 A.2d at 1063. .

In Jones the plaintiff was subjected to x-rays and surgery about two weeks before she was discovered to be pregnant with twins. Although her twins were bom healthy, the mother sued the hospital and a physician, claiming malpractice and negligently inflicted emotional distress. In holding that her claim was actionable so long as the emotional injury was “serious and verifiable,” 589 A.2d at 424, this court answered the question that it had left undecided in Williams v. Baker.

See note 2, supra. .This court has also followed Williams in cases alleging only negligence rather than the separate tort of negligent infliction of emotional distress. See Sowell v. Hyatt Corp., 623 A.2d 1221, 1224 (D.C.1993) (holding that plaintiff, who found a worm in a spoonful of rice while eating in defendant’s restaurant, could recover damages for emotional distress under negligence and breach of warranty claims because she was in the zone of physical danger and because her emotional distress was serious and verifiable); District of Columbia v.

McNeil, 613 A.2d 940, 943 (D.C. 1992) (permitting recovery for physical and emotional injuries caused by negligent mismanagement of pregnancy when plaintiff was physically endangered as a result of defendant’s negligence). . Mrs. Washington also argues that the recent decision in Clement v. Levi, 121 Daily Wash. L.Rptr. 2089 (D.C.Super.Ct.1993), shows that the universe of emotional distress extends beyond Williams.

In Clement the issue was whether a psychiatric patient could sue her former psychiatrist for malpractice, when it was undisputed that the plaintiff neither received any physical injury nor was within the zone of danger. In holding that she could, the court reasoned that application of the zone of physical danger test would "effectively deny recovery to patients of psychiatrists and psychologists and permit mental health professionals to avoid liability for breach of their professional duties.” Id. at 2095.

We take no position on whether the Clement case was correctly or incorrectly decided, but we note that it involves facts quite different from those in the case at bar and, in any event, is not binding on this court. . We are aware that some other courts would allow recovery on a showing of simple negligence. E.g., Brown Funeral Homes & Insurance Co. v. Baughn, 226 Ala. 661, 148 So. 154 (1933); Chelini v. Nieri, 32 Cal.2d 480, 196 P.2d 915 (1948); Brown v. Matthews Mortuary, Inc., 118 Idaho 830, 801 P.2d 37 (1990); Parker v. Quinn-McGowen Co., 262 N.C. 560, 138 S.E.2d 214 (1964); Corrigal v.

Ball & Dodd Funeral Home, 89 Wash.2d 959, 577 P.2d 580 (1978). These cases, however, are basically incompatible with our own en banc decision in Williams v. Baker, and thus we could not follow them even if we were disposed to do so. Acknowledging these decisions, the American Law Institute has changed its original position and now concludes that family members may recover for the intentional, reckless, or negligent mistreatment of a decedent’s body. Restatement (Second) of Torts § 868 (1979). Other commentators have recognized the diversity of views without endorsing any one in particular.

See generally 22A Am.Jur.2d Dead Bodies § 151 & nn. 29-30 (1988) (citing cases); Annotation, Civil Liability of Undertaker in Connection with Embalming or Preparation of Body for Burial, 48 A.L.R.3d 261, 267 (1973) (recognizing new trend permitting recovery in negligence cases); W. Page Keeton et at, Prosser & Keeton on the Law of Torts § 54, at 362 (5th ed. 1984). . Saint Elizabeths Hospital was, at the time of the aunt’s death, owned and operated by the federal government.