## Facts

- Ralph Allen died on December 2, 1976.
- Carl D. Allen, the decedent’s brother and nearest living relative, orally contracted with mortuary operators to cremate the body and ship the cremated remains to Rantoul, Illinois.
- Allen paid $516 for cremation and shipment.
- The shipment allegedly arrived empty due to negligent packaging, and the cremated remains were lost.
- Allen alleged resulting nervous shock, mental anguish, and humiliation.
- The complaint asserted three causes of action: (1) negligent performance of contract (seeking emotional distress damages only), (2) intentional infliction of emotional distress, and (3) deceit based on an alleged promise made without intent to perform, seeking punitive damages.

## Issues

1. Whether emotional distress alone, without physical injury or economic loss, is recoverable as damages for negligent performance of a mortuary contract involving handling and shipment of human remains.
2. Whether the pleaded facts sufficiently stated independent causes of action for intentional infliction of emotional distress and deceit (including a basis for punitive damages).

## Decision

- Reversed in part: the complaint stated a cause of action for negligent performance of contract, and emotional distress damages were legally cognizable in this mortuary-contract setting.
- Affirmed in part: the intentional infliction of emotional distress and deceit causes of action were insufficiently pleaded because the allegations were conclusory and lacked supporting facts; punitive damages therefore could not be maintained on those theories.
- The demurrer should not have been sustained in its entirety; the case was allowed to proceed only on the negligent performance of contract theory.

## Legal Principles

- Contract damages include detriment proximately caused by breach or likely to result in the ordinary course of events, but must be reasonably foreseeable at the time of contracting.
- Emotional distress damages are generally unavailable for breach of contract, but are recoverable when the contract is of a type where breach will reasonably result in serious mental suffering and the contract concerns matters of personal sensibility and peace of mind.
- Mortuary and burial-related agreements are a recognized category in which emotional distress to close relatives from negligent performance is highly foreseeable; mental distress may be “recognized damages” even absent physical injury or economic loss.
- Intentional infliction of emotional distress requires specific factual allegations of extreme and outrageous conduct and intent (or reckless disregard) to cause emotional harm; formulaic characterizations are insufficient on demurrer.
- Deceit based on a promise made without intent to perform requires particularized facts showing contemporaneous intent not to perform; a bare assertion of nonintent is inadequate.
- Punitive damages require a viable tort basis supported by adequately pleaded facts of fraud, malice, or oppression.

## Conclusion

The court held that negligent mishandling and loss of cremated remains can support recovery of emotional distress damages under a mortuary contract because such harm is foreseeable and legally cognizable in this special contractual context, but it rejected separately pleaded intentional infliction of emotional distress and deceit claims where the allegations consisted largely of conclusions without specific supporting facts.


Allen v. Jones, 104 Cal. App. 3d 207 (Cal. Ct. App. 1980)