I respectfully dissent. The majority overrules appellant's third assignment of error on the grounds that appellee cannot be held liable for intentional infliction of emotional distress as a matter of law because she was legally entitled to disinter the remains of Roger Scott pursuant to R.C. 517.23. In so holding, the majority broadly reasons that a legally sanctioned act cannot give rise to the tort of intentional infliction of emotional distress. I disagree with both the majority's holding on this issue, and the broad legal proposition on which it is based.
"In order to recover on an action for intentional infliction of serious emotional distress, four elements must be proved: 1) that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff; 2) that the actor's conduct was so extreme and outrageous as to go `beyond all possible bounds of decency' and was such that it can be considered as `utterly intolerable in a civilized community' [citation omitted]; 3) that the actor's actions were the proximate cause of plaintiff's psychic injury; and 4) that the mental anguish suffered by plaintiff is serious and of a nature that `no reasonable man could be expected to endure it.' [Citation omitted]." Pyle v. Pyle (1983), 11 Ohio App. 3d 31, 34, 11 OBR 63, 66-67, 463 N.E.2d 98, 103-104.
I find nothing in this test to preclude a claim for intentional infliction of emotional distress precipitated by the commission of an otherwise legal act. Further, I see no reason why the doing of a legal act, in and of itself, should absolutely shield an actor from liability for intentional infliction of emotional *Page 60 distress if the four elements set forth in Pyle, supra, are met in a given case.3 Though doing a legal act certainly makes it more difficult to prove the underlying tort, I do not believe it is an absolute bar to liability.
Disinterment provides perhaps the most persuasive example of when the doing of a legal act may give rise to a claim for intentional infliction of emotional distress. Imagine a scenario in which a surviving spouse disinters the remains of her deceased husband on the night before the anniversary of his death, without informing the deceased's mother, father or extended family members and with full knowledge that his family is planning a memorial service the next morning to commemorate his death. Imagine further that the spouse repeatedly disinters the husband's body, continuously moving it to different locations once the family discovers where it has been reburied. The spouse fully acknowledges she has acted solely to cause the husband's family serious emotional distress, and, in fact, the spouse's actions proximately cause serious mental anguish to the husband's family. Under the majority's analysis, the family cannot, as a matter of law, predicate a claim for intentional infliction of emotional distress on the spouse's actions, despite the strong evidence supporting each of the four elements set forth in Pyle, supra. I find this to be an illogical result and one not mandated by either the test set forth for intentional infliction of emotional distress in Pyle or the underlying rationale for this cause of action.
With regard to the instant case, although the facts are not as extreme as those set forth in the hypothetical above, I believe the appellants herein have set forth sufficient evidence under Civ.R. 56 standards to survive summary judgment. Viewing the evidence in a light most favorable to the appellants, I believe the evidence presented is sufficient to warrant the inference that the appellee's actions were done with intent to cause appellant's serious emotional distress. In addition, I believe reasonable minds could differ as to whether the appellee's actions were "so extreme and outrageous as to go `beyond all possible bounds of decency.'" Pyle, supra,11 Ohio App.3d at 34, 11 OBR at 66, 463 N.E.2d at 103-104. Further, I believe there exist genuine issues of material fact regarding the issues of proximate causation and the seriousness of the appellant's alleged resulting mental anguish. Accordingly, I believe the appellant's third assignment of error should be sustained.
One final note. In overruling appellant's third assignment of error, the majority states: "[Appellee] owed no duty to appellants in the legal sense, and in *Page 61 order for a tort to be committed, there must be an existing duty." I do not believe proof of an existing duty is necessary to show the commission of an intentional, as opposed to a negligence-based, tort. Consequently, I do not believe any absence of a duty is relevant to appellant's claim for intentional infliction of emotional distress.
I would sustain appellant's third assignment of error, reverse the decision of the Court of Common Pleas of Licking County, and remand for further proceedings consistent with this dissent.
3 I believe this reasoning is implicitly supported byRuss v. TRW, Inc. (1991), 59 Ohio St. 3d 42, 570 N.E.2d 1076, in which the Ohio Supreme Court held that an action predicated upon intentional infliction of emotional distress brought by an at-will employee against his employer is not foreclosed merely because his discharge from employment was obtained in a lawful manner.