Missing man's family can't sue over cremation, CSA affirms

Family members who claim they were never notified before the state cremated the remains of a man they reported missing cannot sue the state or the Baltimore City and County police departments, the Court of Special Appeals has affirmed.

The lawsuit was filed by the family of 36-year-old Dwane McGinnis Sr., who was cremated by the state without his family's knowledge during the summer of 1998, after police found him dead in a Baltimore park.

Police found McGinnis' body hanging from a tree on July 18. Although police found several forms of identification on his body, the lawsuit claimed, no one notified the family after McGinnis' wife and mother reported him missing on July 31.

The body was turned over to the state medical examiner's office and cremated without the family's knowledge or consent, the lawsuit claimed.

The family only learned McGinnis had been cremated because his brother had contacts within the Baltimore City Police Department, according to court records.

The family's attorney, Ralph Byrd, expressed disappointment with the opinion and expects to seek reconsideration of the case.

Assistant Attorney General James C. Anagnos declined to comment about the matter.

The family sought damages for severe emotional trauma, claiming, among other things, that police and the state medical examiner's office "acted with gross negligence and reckless disregard for the rights of the Plaintiffs to pay their last respects to their loved one and dispose of the decedent's body in accordance with the family's wishes."

The police officers and medical examiners filed motions to dismiss on the ground they had governmental and public official immunity. The Baltimore County Circuit Court granted their requests.

"We hold that the alleged acts of the City and County appellees were performed by public officials acting in a discretionary capacity, without malice, and within the scope of their employment," Judge James R. Eyler wrote in the unreported opinion.

The Court of Special Appeals reasoned that the medical examiners, as state employees, were immune from liability under the Maryland Tort Claims Act. Under that statute, state personnel cannot be sued for tortuous acts or omissions committed within the scope of their public duties, unless a plaintiff can prove malice or gross negligence.

The court concluded that the complaint failed to adequately plead gross negligence or malice.

"Merely pleading that the State appellees failed to do something falls short of what is necessary to properly plead gross negligence," Eyler wrote. "Accordingly, we hold that the trial court did not err in granting State appellees' motion to dismiss based on their statutory immunity."

WHAT THE COURT HELD

Case: Jo Ann McGinnis et al v. Maryland State Anatomy Board et al, CA No. 1170, Sept. Term 2002. Unreported. Opinion by Eyler, James R., J. Filed March 10, 2003.

Issue: Did the trial court err in dismissing negligence actions against Baltimore City and County police officers and state personnel for wrongfully cremating a man reported missing?

Holding: No. The defendants, as public entities, were entitled to immunity for their acts.

Counsel: Ralph T. Byrd for the appellant; Asst. AG James C. Anagnos for the appellee.

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