dissenting:
As the majority points out, this court has never decided whether the surviving spouse of a decedent whose body has been mishandled in preparation for burial may recover damages for negligent infliction of emotional distress. The question was identified and discussed in District of Columbia v. Smith, 436 A.2d 1294, 1296-97 n. 1 (D.C.1981), but its resolution was deferred to another day. That day has now arrived, and I would adopt the approach favored by an emerging majority of the courts and commentators who have considered it, including the Restatement. This approach would require us to reverse the judgment below.
The cautious attitude of this and other courts to authorizing recovery for negligent infliction of emotional distress is based in substantial part on the legitimate concern that mental suffering may too easily be feigned, Williams v. Baker, 572 A.2d 1062, 1068 (D.C.1990) (en banc), that assurances are needed that a claimed injury to feelings has not been fabricated, id. at 1064-65, and that greater liberality in this area would “open a wide door for unjust claims.” Id. at 1066 (citation omitted). As counsel for the funeral home conceded at oral argument, this consideration has little or no application to cases like this one. Cessanti rations, cessat ipsa lex.1
As my colleagues recognize, ante at 349 n. 7, the American Law Institute (ALT), which recognizes the same kinds of restrictions on recovery for negligent infliction of emotional distress as this court does, see Restatement (Seoond) of Torts, § 436(2) (1979) (quoted in Williams, 572 A.2d at 1066), has nevertheless concluded that dead body cases are different:
Interference with Dead Bodies. One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.
Restatement (Second) of Torts § 868 (1979) (emphasis added). The comments to § 868 further spell out the legal principles which, in my view, should dispose of this appeal:
d. The rule stated in this Section applies not only to an intentional interference with the body itself for with its proper burial or cremation, but also to an interference that is reckless or merely negligent. Thus an undertaker who negligently embalms the body, a carrier that negligently transports it or an automobile driver who negligently collides with the hearse and dumps the corpse out into the highway will be subject to liability, if the result is harm to the body or prevention of its proper burial or cremation.
* % % sfs sfc
f. The damages recoverable include not only the mental distress suffered by the one entitled to disposition of the body but also physical harm resulting from the mental distress.
(Emphasis added).
In a discussion of the appropriate weight to be accorded to the Restatement of Con*352tracts, this court stated in Ellis v. James V. Hurson Assocs., Inc., 665 A.2d 615 (D.C. 1989):
In the absence of any current well-developed doctrine in our jurisdiction, we adopt this modern and authoritative exposition insofar as it applies to the case before us.
Id. at 618. The ALI’s views should likewise be treated as authoritative in the present case.
Dean Prosser and Professor Keeton, perhaps the leading commentators on the law of torts, also subscribe to a restrictive rule for the generality of cases of negligent infliction of emotional distress,2 but would countenance an exception for situations like this one:
[One] group of cases has involved the negligent mishandling of corpses. Here the traditional rule has denied recovery for mere negligence, without circumstances of aggravation. There are by now, however, a series of cases allowing recovery for negligent embalming, negligent shipment, running over the body, and the like, without such circumstances of aggravation. What all of these cases appear to have in common is an especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious. Where the guarantee can be found, and the mental distress is undoubtedly real and serious, there may be no good reason to deny recovery.
PROSSER & Keeton, supra note 2, § 54, at 362 (emphasis added; footnotes omitted).
In Brown v. Matthews Mortuary, Inc., 118 Idaho 830, 801 P.2d 37, 43-44 (1990), the Supreme Court of Idaho adopted the Restatement rule and identified a substantial number of decisions which recognized an exception for “dead body” cases from otherwise applicable restrictive doctrines governing recovery for the negligent infliction of emotional distress. The reason for the exception is readily apparent; any woman with normal susceptibilities would be likely to suffer genuine distress if her husband’s body was treated in the manner described in Mrs. Washington’s complaint. See maj. op., ante at 346. The danger of feigned or spurious claims in a situation like the present one is surely minimal.
My colleagues rely heavily on our en banc decision in Williams v. Baker. When I joined Judge Belson’s opinion for the court in that case, I certainly did not conceive that I was telegraphing any views on a dead body case such as this one. The question in Williams was whether a mother who was not in the zone of danger could recover for mental suffering allegedly sustained by her as a result of medical malpractice in the treatment of her three-year-old son.3 The two cases are factually quite different, and we could not and did not decide in Williams whether to accept or reject the recognized exception from the general rule in dead body cases.' Language from Williams cannot usefully be transposed to a scenario like the present case, in which the facts are not even remotely comparable. Indeed, we have often cautioned against such transposition. See, e.g., Mims v. Mims, 635 A.2d 320, 325 n. 12 (D.C.1993); Khiem v. United States, 612 A.2d 160, 164 (D.C.1992), cert. denied, — U.S.-, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993), and authorities cited in Khiem.
Treating the allegations of the complaint as true, as we must for purposes of Rhines’ motion to dismiss, see maj. op. at 346 n. 1, Mrs. Washington was put through a harrowing ordeal as a result of the defendant’s negligence. Her late husband’s body was drenched with fluid, discolored, swollen and decomposing, and it emitted an offensive odor. Common sense counsels that if this is what occurred, the injury was genuine, not feigned, and significant, not trivial. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever [she] receives an injury.” Marburg v. Madison, 5 U.S. (1 Crunch) 137, 163, 2 L.Ed. 60 (1803).
*353Feelings are facts. Where the injury to feelings is as real and as palpable as that claimed here, we ought not to deny Mrs. Washington redress. She should be permitted to present her evidence to a jury of her peers. Accordingly, I respectfully dissent.
. "When the reason for a rule of law ceases to exist, the rule of law itself ceases too.” (Loose translation from the Latin.)
. See W. Page Keeton, et al, Prosser & Keeton on the Law of Torts § 54, at 361 (5th ed. 1984).
. In Williams, recovery for pain and suffering was available for the son. In this case, either the widow prevails or there is no recovery at all for injury to feelings.