Allen v. Jones

Plaintiff sued a crematorium for negligence and emotional distress after his brother's remains were lost in shipment. Demurrer sustained without leave to amend; plaintiff appealed.

The defendant agreed to cremate and ship the remains of plaintiff's brother. The container arrived empty; the remains were never recovered.

Whether damages for emotional distress are recoverable for negligent breach of a contract to handle human remains.

Emotional-distress damages are recoverable in contract where the contract's subject matter is such that serious emotional disturbance is a particularly likely result of breach.

Yes. The complaint states a cause of action for mental distress damages.

Contracts concerning the disposition of human remains are entered into for peace of mind rather than pecuniary advantage; economic loss alone would leave the breach effectively unremedied.

Restatement (Second) of Contracts § 353 — emotional disturbance damages.

Judgment of dismissal reversed.

Concurrence and dissent: would allow the contract count but not an independent tort theory.

Pitfall: this is a contract-damages exception, not a freestanding tort of negligent infliction.

Leading California authority for the mortuary/remains exception to the no-emotional-distress rule in contract.

Westervelt v. McCullough, 68 Cal. App. 198 (1924).