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Guth v. Freeland7/31/2001
6th ed. 1990) (citing Fulton Light, Heat & Power Co. v. State, 65 Misc.Rep. 263, 121 N.Y.S. 536 (N.Y.Ct.Cl. 1909)). Among these rights are "the unrestricted and exclusive right to a thing; the right to dispose of a thing in every legal way, to possess it, to use, it, and to exclude every one else from interfering with it." Id. The term also denotes "everything that has an exchangeable value or which goes to make up wealth or estate[:] . . . extends to every species of valuable right and interest, and includes real and personal property, easements, franchises and incorporeal hereditaments, and . . . every invasion of one's property rights by actionable wrong." Id. (citing Labberton v. General Cas. Co. of Am., 332 P.2d 250, 252, 254 (Wash. 1958)).
The term "material object" is not a legal concept but stems from the concurring and dissenting opinion in Rodrigues, which discouraged recognition of "attachment to material possessions" as a basis for recovery in a court of law. 52 Haw. at 175 n.8, 472 P.2d at 521 n.8. In that sense, the term embodies a value determination that "materialistic" attachment, i.e., a "preoccupation with or stress upon material . . . things," Merriam Webster's Collegiate Dictionary 717 (10th ed. 1993), is not actionable. Thus under that view, while all "material objects" are property, not all property would fall within the category of "material object ."
The facts in this case do not present a preoccupation with material rather than intellectual or spiritual things and so we are not concerned with the "material object" aspect of HRS § 663-8.9(a). But conceivably, the remains of a person may be regarded as property, for example, as where they are purchased for anatomical study, or parts used for organ transplantation, or tissues recovered for genetic research, or in any other number of transactions or endeavors.
B.
It is not unexpected, then, that " ome courts have recognized a quasi-property right in dead bodies for the limited purpose of [having a] body . . . [appropriately] interred or disposed of." Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877, 880 (Colo. 1994) (citing 22A Am. Jur. 2d Dead Bodies § 3 (1988); Whitehair v. Highland Memory Gardens, Inc., 327 S.E.2d 438, 441 (W.Va. 1985)) (parenthetical explanation omitted). It is said that " he quasi-property rights of the survivors include the right to custody of the body; [the right] to receive it in the condition in which it was left . . . ; [the right] to have the body treated with decent respect . . . ; and [the right] to bury or . . . dispose of the body without interference." Whitehair, 327 S.E.2d at 441 (citations omitted) (cited in Culpepper, 877 P.2d at 880). Insofar, however, as the purported property right in human remains serves "as a mere peg upon which to hang damages for . . . mental distress," Restatement (Second) of Torts § 868 comment a (1979), it is a legal fiction, a proxy for the physical injury , that some courts require as a guarantee of the genuineness of an emotional distress claim. See Rodrigues, 52 Haw. at 170-71, 472 P.2d at 519 (citations omitted).
I believe that, in the context in which this case arises, the human remains over which Plaintiffs grieve are not "property" as that term is employed in HRS § 663-8.9. In the context of Plaintiffs' cause of action, the decedent's body is not the object of sale or transfer or of some use, see Restatement (Second) of Torts § 868 comment a, supra, stemming from its intrinsic nature and, thus, is not property in the commonly understood sense. The mental distress of family members or those in equivalent positions stems from the symbolic character the remains hold for such persons. In that framework, the cause of
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