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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. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  2. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  3. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  4. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  5. Why do so many lawyers get away with lying in court, Jamie Yoak?

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