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COA rules botched burial does not entitle relatives to award

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The Indiana Court of Appeals has ruled that relatives of a woman whose burial went awry are not entitled to damages.

On August 16, 2007, Doris Johnson’s family had left her grave site before interment. When the casket was determined to be too large to fit in the burial vault, funeral director Donald Fredrick, along with Donald Gilmore, Robert Evans, and Michael Carnahan, attempted to force the vault closed. It was interred without being completely sealed.

On August 27, Johnson’s family — the Yorks — received an anonymous call about the problems with the burial. Family members called the Duesterberg-Fredrick funeral home, requesting that the casket and vault be exhumed.

The Yorks were not responsible for the cost of the August 30 exhumation, replacement casket, and replacement vault.

Tina Baum, Johnson’s granddaughter, and two other relatives, Summer Noland and Shawn York, were present at exhumation. All three noticed some damage to either the vault or casket, but no damage to the remains. Photographs and video taken at the exhumation were played during a family reunion and viewed by the Yorks and other relatives. For Steven and Sharon York, this was their first opportunity to view the vault, casket, and remains. They did not notice any damage to the remains.

The Yorks all contend to have suffered emotional distress as a result of this incident, but none sought any medical or other professional treatment.

On July, 17, 2008, the Yorks filed an amended complaint against Fredrick; the funeral home; Edwardsport Town Cemetery Association; Sexton Wilbert Corp., twhich delivered the vault; and those who put Johnson’s remains in the vault, alleging negligence, gross negligence, negligent infliction of emotional distress, intentional infliction of emotional distress. They also alleged Fredrick and the funeral home committed a breach of fiduciary duty.

On December 29, 2008, the trial court issued an order granting the partial motion to dismiss of all the defendants as to the claims of negligent infliction of emotional distress pursuant to Indiana Trial Rule 12(B)(6). A motion for summary judgment for the remaining allegations was filed and joined by all of the Defendants.

The Yorks filed a response to this motion, and Evans and Sexton Wilbert filed a reply brief to this response and a supplement to the facts. The Yorks filed a motion to strike both filings by Evans and Sexton Wilbert, which was denied by the trial court. On July 23, 2010, the trial court issued an order granting summary judgment in favor of the defendants on all of the remaining allegations.

On appeal in Sharon S. York, et al. v. Donald Fredrick, et al., No. 42A01-1008-PL-420, the Yorks cited Indiana’s bystander rule in support of their claim for relief for negligent inflection of emotional distress. But the COA cited Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000), which states that a bystander must either witness or come upon a scene soon after the death or severe injury of a loved one caused by the defendant’s negligent conduct. The family, the COA stated, was not present at the time of the interment.

Again citing Groves, the COA said that the “scene” must be essentially as it was at the time of the incident, and the claimant must not have been informed of the incident before coming upon the scene. The family had been informed of the burial problems and had voluntarily attended the exhumation.

The appellate court also affirmed summary judgment in favor of the defendants on the remaining claims and held the Yorks wavied their claim regarding the denial of their motion to strike.
 

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  1. Bob Leonard killed two people named Jennifer and Dion Longworth. There were no Smiths involved.

  2. Being on this journey from the beginning has convinced me the justice system really doesn't care about the welfare of the child. The trial court judge knew the child belonged with the mother. The father having total disregard for the rules of the court. Not only did this cost the mother and child valuable time together but thousands in legal fees. When the child was with the father the mother paid her child support. When the child was finally with the right parent somehow the father got away without having to pay one penny of child support. He had to be in control. Since he withheld all information regarding the child's welfare he put her in harms way. Mother took the child to the doctor when she got sick and was totally embarrassed she knew nothing regarding the medical information especially the allergies, The mother texted the father (from the doctors office) and he replied call his attorney. To me this doesn't seem like a concerned father. Seeing the child upset when she had to go back to the father. What upset me the most was finding out the child sleeps with him. Sometimes in the nude. Maybe I don't understand all the rules of the law but I thought this was also morally wrong. A concerned parent would allow the child to finish the school year. Say goodbye to her friends. It saddens me to know the child will not have contact with the sisters, aunts, uncles and the 87 year old grandfather. He didn't allow it before. Only the mother is allowed to talk to the child. I don't think now will be any different. I hope the decision the courts made would've been the same one if this was a member of their family. Someday this child will end up in therapy if allowed to remain with the father.

  3. Ok attorney Straw ... if that be a good idea ... And I am not saying it is ... but if it were ... would that be ripe prior to her suffering an embarrassing remand from the Seventh? Seems more than a tad premature here soldier. One putting on the armor should not boast liked one taking it off.

  4. The judge thinks that she is so cute to deny jurisdiction, but without jurisdiction, she loses her immunity. She did not give me any due process hearing or any discovery, like the Middlesex case provided for that lawyer. Because she has refused to protect me and she has no immunity because she rejected jurisdiction, I am now suing her in her district.

  5. Sam Bradbury was never a resident of Lafayette he lived in rural Tippecanoe County, Thats an error.

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