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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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