No. 3-307 / 02-1832Court of Appeals of Iowa.
Filed June 13, 2003
Appeal from the Iowa District Court for Polk County, Donna L. Paulsen, Judge.
Plaintiffs appeal from the district court order granting defendant’s motion for summary judgment with respect to their claims of negligent infliction of emotional distress and breach of contract. AFFIRMED.
Joseph Nugent, West Des Moines, Harley Erbe of Nelson Erbe, P.L.C., Des Moines, and E. Ralph Walker of Walker Law Firm, P.C., Des Moines, for appellants.
John McClintock and Aaron Oliver of Hansen, McClintock Riley, Des Moines, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
EISENHAUER, J.
Plaintiffs Mary Aldridge, Denise Aldridge-Norman, and Dennis Aldridge appeal from the district court order granting defendant D.W. Newcomer’s Sons, Inc.’s motion for summary judgment with respect to their claims of negligent infliction of emotional distress and breach of contract. We review the district court’s ruling for errors at law. Iowa R.App.P. 6.4.
Mary and her husband, Merrill, entered into a written contract with the defendant to purchase two burial plots at Sunset Cemetery. Merrill died on December 21, 2000. The following day, Mary contracted with Sunset for Merrill to be buried on December 26 in one of the two purchased plots. Sometime in March 2001, it was discovered that Merrill had been inadvertently interred in the wrong plot. Merrill’s vault was disinterred and reburied in April 2001. Mary and her children, Denise and Dennis, filed suit against the defendant on August 16, 2001, asserting claims of negligent infliction of emotional distress and breach of contract for the defendant’s failure to bury Merrill in the correct location. The Defendant moved for summary judgment on July 15, 2002. The district court granted the motion as to both claims on October 9, 2002.
Damages for negligent infliction of emotional distress are usually denied unless accompanied by some physical injury to the plaintiff Roling v. Daily, 596 N.W.2d 72, 75 (Iowa 1999). One exception to this rule involves bystander liability based on the breach of a duty of care by the defendant not to cause emotional distress to those who witness conduct that causes serious harm to a close relative. Clark v. Estate of Rice ex rel. Rice, 653 N.W.2d 166, 170 (Iowa 2002). The bystander exception occurs when:
1. The bystander was located near the scene of the accident.
2. The emotional distress resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence.
3. The bystander and the victim were husband and wife or related within the second degree of consanguinity or affinity.
4. A reasonable person in the position of the bystander would believe, and the bystander did believe, that the direct victim of the accident would be seriously injured or killed.
5. The emotional distress to the bystander must be serious.
Id. The district court concluded the plaintiffs could not recover damages for negligent infliction of emotional distress under this theory because they did not observe an accident involving Mr. Aldridge that caused them to believe them to believe he would be seriously injured or killed. We agree plaintiffs cannot prevail on their claim for these reasons.
A second exception exists when the nature of the relationship between the plaintiff and the defendant is such that it supports the imposition of a duty of care on the defendant to avoid causing emotional harm to the plaintiff. Id.at 170-71. Where the parties assume a relationship that is contractual in nature and deals with services or acts that involve deep emotional responses in the event of a breach, we recognize a duty of care to protect against emotional distress. Id. at 171. In this vein, our supreme court has also recognized a cause of action to recover for negligently inflicted emotional distress in the performance of a contract for funeral services. Id. See also Meyer v. Nottger, 241 N.W.2d 911, 921
(Iowa 1976) (“[W]e hold that recovery of damages may be had in appropriate cases for mental distress, absent physical trauma, arising out of the breach of a contract to perform funeral services.”). However, i Millington v. Kuba, 532 N.W.2d 787, 793 (Iowa 1995), our supreme court held that children of a wrongfully cremated man could not recover damages for negligent infliction of emotional distress because they were not aware of the cremation until sometime after the procedure had been completed. Accordingly, the plaintiffs were too removed from the defendant’s alleged negligent conduct to impose on the defendant’s a duty to exercise ordinary care to avoid causing emotional harm to the plaintiffs. Millington, 532 N.W.2d at 793. Likewise, the plaintiffs here did not learn Merrill had been buried in the wrong plot until months after the burial. Pursuant to Millington, the plaintiffs were too removed from the negligent conduct. The district court did not err in granting the defendant’s motion for summary judgment with respect to the plaintiffs’ claim of negligent infliction of emotional distress.
Plaintiffs next assert the district court erred in dismissing their claim for breach of contract. The contract Mary signed on December 22, 2000 contained three parts. They were titled “Funeral and Cemetery Agreement,” “Cemetery Schedule,” and “Interment Information.” All three parts were signed by Mary. The Interment Information listed the essential terms of the contract, and contained a clause stating:
It is further agreed that, in the event of an error in the disposition resulting from an error of the cemetery, such error shall be corrected by the cemetery and the cemetery shall incur no further liability with respect thereto.
The district court concluded defendant’s liability for its breach of contract is limited based on this clause. Plaintiffs contend the Interment Information was not part of the contract between Mary and the defendant, that it did not constitute a valid modification of the contract, and that it is not supported by valid consideration as a separate contract. Based on the information contained in the Interment Information, the district court concluded it was included in the contract. We agree with this conclusion.
Plaintiffs next contend the limitation on damages clause of the Interment Information should be voided as against public policy. Although contracts that contravene public policy will not be enforced, the power to invalidate a contract on public policy grounds must be used cautiously and exercised only in cases free from doubt. Rogers v. Webb, 558 N.W.2d 155, 156-57 (Iowa 1997). Whenever the court considers invalidating a contract on public policy grounds it must also weigh in the balance the parties’ freedom to contract. Id. at 157. Before we strike down a contract based upon public policy, we must conclude the preservation of the general public welfare imperatively so demands invalidation so as to outweigh the weighty societal interest in the freedom of contract. Id. The district court rejected the plaintiffs’ argument, concluding an interest exists in allowing the defendant the opportunity to correct an error before incurring immediate liability for the mistake. We agree that the clause does not violate public policy and therefore should not be voided.
Plaintiffs offer no proof that Merrill was not properly reburied. Because the defendants took corrective action, they are immune from further liability under the valid clause contained in the Interment Information. Accordingly, we affirm the district court’s grant of defendant’s motion for summary judgment with respect to plaintiff’s breach of contract claim.
AFFIRMED.