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A demurrer challenges the legal sufficiency of claims. It does so by arguing that a pleading does not state a cause of action, or fails to state facts upon which relief can be granted. Va. Code Ann. § 8.01-273(A).While a demurrer does not admit the correctness of the pleading's conclusions of law, it admits the truth of all material facts that are properly pleaded, facts which are impliedly alleged, and facts which may be fairly and justly inferred. In order to survive a challenge on demurrer, a pleading's facts must be sufficiently definite such that the pleading informs the opposing party of the "true nature of the claim. Va. Sup. Ct. R. 1:4(d). A demurrer should be sustained if the complaint, considered in the light most favorable to the plaintiff, fails to state a valid cause of action.
Plaintiff widow instituted an action against defendant funeral service and crematory. According to plaintiff’s complaint, the defendant violated its contract with plaintiff regarding the handling of the decedent’s cremated remains, allowing plaintiff’s stepdaughter to take two urns containing all of the decedent’s remains, rather than just the one urn to which the stepdaughter was entitled. Because the stepdaughter has refused to return the one urn to defendant or give one urn to plaintiff, plaintiff has been deprived of all of the decedent’s remains. Plaintiff alleged that she incurred damages from the defendant’s breach of contract and breach of her right to dispose of her husband's remains. Plaintiff sought recovery for breach of contract, intentional infliction of emotional distress, negligence per se, willful or wanton negligence, negligence, gross negligence, and negligent infliction of emotional distress. A demurrer was filed by the defendant.
Under the circumstances, should the court sustain the demurrer filed by the defendant?
The defendant’s demurrer was granted as to all counts. The court held that the plaintiff failed to establish any of the elements required for intentional infliction of emotional distress and failed to identify any duty arising independent of the contract between her and a funeral service and crematory because she did not allege the intentional or reckless acts that inflicted indignity upon the body of a loved one necessary to demonstrate a violation the quasi-property right to bury and preserve remains. The court further held that the plaintiff failed to properly plead the elements of a negligence per se claim because she did not allege that the crematory violated 18 Va. Admin. Code § 65-20-500(4) or that the widow belonged to the class of persons for whose benefit it was enacted, dead human bodies, not to cremains. Because the alleged misconduct did not fall within "the practice of funeral services," the plaintiff failed to plead that the crematory breached § 65-20-500(6).