There is a bizarre and disturbing case out of Bakersfield California where Officer Aaron Stringer has been put on leave after he allegedly admitted that he liked to play with dead bodies and was seeing tickling the feet of a dead man (shot by police) and saying “tickle, tickle.”

The reported plaything of Stringer was Ramiro James Villegas, 22, who was shot on November 13, 2014 after a police pursuit and a crash into a light pole. Villegas’ family is suing and saying that Villegas had his hands up in the air and was unarmed when shot. Police say that he reached for his waistband, but no weapon was ever found. Villegas was tasered and shot nine times with bullets striking his head and genitals

Stringer reportedly grabbed Villegas’ head and was touching his feet as he lay dead on a gurney. He is quoted as telling another officer that he “loves playing with dead bodies.” A trainee reported the conduct to a supervisor.

This could add an interesting legal claim over the abuse of a corpse. The family could articulate additional emotional injury from the mistreatment of the body. Under California law, both intentional and negligent emotional distress claims are recognized.

For intentional infliction of emotional distress, you must show that the defendant intentionally causes harm by acting in an “extreme and outrageous” way, which can include the misuse of authority or heinous acts. Gross recklessness or reckless disregard is allowed in addition to traditional intent. You must also show that the conduct caused severe emotional distress, though the conduct can be just a “substantial factor” in causing the emotional trauma.

There is also negligent infliction of emotional distress where negligent acts, errors or omissions were a substantial factor. These cases can fell into two groups based on the “bystander” theory and the “direct victim” theory. California and other states follow a variation of the so called Dillon Rule. There is also a requirement that the plaintiff suffered very severe emotional distress, or that there be a particularly close familial relationship.

What is interesting here is that the family was not present at the abusive conduct. This tort is recognized for bystanders if a person happens to be in the presence of a negligent incident but, was not directly involved. In such cases, they have to show that they perceived the physical injury or death of the victim. They have to show that the person was injured or killed due to negligence and that they were present at the scene of the accident and were able to perceive what was taking place. This requirement often produces painful results in litigation. In Hathaway v. Superior Court, 112 Cal. App. 3d 728, 169 Cal. Rptr. 435 (Ct. App. 1980), a six-year-old boy was electrocuted when he touched a cooler that was recently installed outside the house. Since the boy’s parents did not witness the electrocution from inside the house, they were deemed barred. The court ruled:

[When the boy’s parents discovered their son, he] was no longer gripping the water cooler and receiving the electrical charge. The event which constituted the accident had ended. It is uncontradicted that [the boy’s parents] did not sensorially perceive the injury-causing event, that is, the actual contact between the electrically charged water cooler and [their son], but saw only the results of the contact (the injuries) after the accident was over.

Id. at 736 (parenthesis in original).

I have always found the rule to be too restrictive in such cases because the emotional distress claims seem to me to be both genuine and obvious.

In the end, the playing with the body may not be necessary to secure significant damages, but there is always an uncertainty given the police chase and jurors who may be unsympathetic to the deceased. The question is whether the later conduct by Stringer could make into the trial due to its high potentiality for prejudice if it is not separate count or at least part of the claim for damages.