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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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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