This section contains the nature of the case and procedural background.

Kiro died in February of 1994. Ps arranged for the burial with D. The family owned a family plot. Ps were concerned that no other graves would be disturbed by preparing the unused gravesite for Kiro's burial. The gravesite was visited to examine the relationship between the adjacent graves and the unused gravesite and to assure that there was sufficient room. Ps specifically inquired of David C. Merrill, a managerial employee for D, whether the grave for Kiro could be dug without disturbing the graves of any other family members who were buried nearby. Mr. Merrill represented that no other graves would be disturbed and that the headstone of another grave would be temporarily removed for additional clearance. Ps allowed the family plot to be used for the burial of Kiro. The contract to bury Kiro was signed. Kiro's grave was dug with a backhoe, a spotter was normally employed but not in this instance. The backhoe broke into the concrete liner and casket of the adjacent thirty-year-old grave of Ps' mother Vondaine Jaynes exposing her remains. Although it was D's policy to cover a newly dug gravesite, that policy was not followed in this case. Both the newly dug grave and the portion of Vondaine's (Ps’ mother) grave which was uncovered, were left exposed. P discovered the damage and called the police. Vondaine's feet and legs were exposed to view. The manager did nothing to prevent further disturbance nor did he cover the site. He returned the next morning to photograph the gravesite and found that it had been further disturbed. Broken pieces of the liner from Vondaine's casket were in different positions than they had been the night before, and several beer cans were strewn about the area. The manager testified at his deposition that he knew that 'people frequented the cemetery after hours' and, that because alcohol was sold across the street, he knew that people slept in the cemetery. Near the burial site, Ps observed a truck with chunks of wood, concrete, and other debris from their mother's grave. D refunded the costs and Vondaine Jaynes was disinterred in November 1994. Her remains were placed in a new coffin, the concrete liner was replaced, and the remains were reinterred. Ps sued D for breach of contract, intentional infliction of emotional distress, negligent infliction of emotional distress, and prima facie tort. D moved for summary judgment and it was granted.

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