Johnson v. Marion Cnty. Coroner's Office

• Decision Date: 19 July 2012
• Docket Number: No. 49A02–1111–CT–1070.,49A02–1111–CT–1070.
• Parties: David Daniel JOHNSON, Jr., By Next Friend, INDIANA DEPARTMENT OF CHILD SERVICES, Appellant–Plaintiff, v. The MARION COUNTY CORONER'S OFFICE and City of Indianapolis, Appellees–Defendants.
• Court: Indiana Appellate Court

971 N.E.2d 151

David Daniel JOHNSON, Jr., By Next Friend, INDIANA DEPARTMENT OF CHILD SERVICES, Appellant–Plaintiff,

v.The MARION COUNTY CORONER'S OFFICE and City of Indianapolis, Appellees–Defendants.

No. 49A02–1111–CT–1070.

Court of Appeals of Indiana.

July 19, 2012.

Robert D. King, Jr., David R. Thompson, Indianapolis, IN, Attorneys for Appellant.

Beth A. Dale, Office of Corporation Counsel, Indianapolis, IN, Attorney for Appellees.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant–Plaintiff, D.J., Jr., by next friend the Indiana Department of Child Services (D.J.), appeals the trial court's grant of summary judgment in favor of Appellees–Defendants, the Marion County Coroner's Office (the Coroner's Office) and the City of Indianapolis (the City) (collectively, the Appellees), with respect to D.J.'s claim for negligent and intentional infliction of emotional distress resulting from the removal of his mother's remains.

We affirm in part, reverse in part, and remand for further proceedings.

ISSUES

D.J. raises three issues on appeal, which we restate as:

(1) Whether the trial court correctly held, as a matter of law, that the Coroner's Office is entitled to the law enforcement immunity pursuant to the Indiana Tort Claims Act;

(2) Whether summary judgment was appropriate with respect to D.J.'s claim for damages for negligent infliction of emotional distress arising out of the removal of his deceased mother's remains; and

(3) Whether summary judgment was appropriate with respect to D.J.'s claim for damages for intentional infliction of emotional distress because the Appellees' conduct was extreme and outrageous.

FACTS AND PROCEDURAL HISTORY

In May of 2009, thirteen-year-old D.J was living in an apartment in Indianapolis, Indiana, together with his mother, Teresa Smith (Smith), and his biological father, David Johnson, Sr. (Johnson). Smith and Johnson had never married. The last three to four years, Smith had been bedridden due to her weight and D.J. helped take care of her.

On May 19, 2009, at approximately 6:30 a.m., Johnson woke up D.J. and asked him to call 911 because something was wrong with his mother. D.J. called 911 and told dispatch that his mother was asleep and would not wake up. While they waited for the paramedics to arrive, D.J. went into his mother's bedroom and saw her body. Shortly thereafter, Indianapolis Metropolitan Police Officer Randall Denny (Officer Denny) arrived at the apartment. Officer Denny checked Smith's vital signs and informed D.J. that his mother had died. Upset at hearing this news, D.J. walked out the apartment, told a neighbor that his mother had died, and then sat near the utility box on the sidewalk to cry. Officer Denny contacted the Coroner's Office with the request to send a deputy coroner to the apartment.

Deputy Coroner Steven Kelly (Kelly) responded. Kelly had been with the Coroner's Office for approximately one month and had not yet received any formal training. At the apartment, Kelly spoke with Johnson and the police officers who were present. He then went into Smith's bedroom. Given Smith's obesity, Kelly was unsure how to handle the situation. Three employees of Digger Mortuary Services, the Coroner's Office contractor handling the removal of a decedent's remains, arrived at the apartment. All three employees told Kelly that they did not have the equipment to transport Smith's remains to the Coroner's Office. Kelly contacted Michelle Willis (Willis), another Deputy Coroner, to get instructions. Willis was off duty at that time and she suggested that he contact the Chief Deputy Coroner Alfarena Ballew (Ballew). Because Kelly did not have Ballew's direct phone number, he phoned the Coroner's office and spoke with the office secretary. After Kelly apprised the secretary of the situation, the secretary placed Kelly on hold while she relayed a message to Ballew, who was in a meeting. The secretary told Ballew that “there is a need to remove an extremely obese female from a scene, who is on a mattress.” (Appellant's App. p. 114). Ballew requested some follow-up information. A while later, the secretary returned and informed Ballew that

[t]he body was situated on a mattress, and the decedent was unable to be removed from the mattress, and that the removal service that [is normally contracted] [Digger Mortuary Services] did not have the appropriate equipment, cot and/or staff that could remove the decedent from the mattress, to any equipment that she could be transported from the scene to the Coroner's Office.

(Appellant's App. p. 115). The secretary then recalled a previous case where they had removed a decedent by using a towing service and asked Ballew if she wanted to use a tow truck. Ballew responded, “Well, I guess we can.” (Appellant's App. p. 114). The secretary then called Zores Towing and instructed them to send a tow truck to the apartment.

After Kelly informed the police officers present that a tow truck was coming to transport Smith's remains, a police officer contacted the Indianapolis Fire Department (IFD) for assistance. Upon arrival, the IFD started to drag Smith's body out of the apartment on her mattress, covered with a sheet as the Coroner's Office did not have any body bags that would fit. A maintenance crew of the apartment complex removed the back door of the apartment. D.J. saw men dragging his mother, on her mattress, through the living room and out the door. Outside, sheets were held up around the mattress in an attempt to block pedestrians, who had gathered around, from watching the removal of Smith's remains. Smith's body was dragged to the apartment complex's courtyard, where the tow truck was parked. At Kelly's direction, workers winched Smith's body, secured on the mattress, onto the truck, pulled it up a ramp to the flat bed portion of the truck and then strapped it down. Once Smith's remains were lashed down on the tow truck, workers tossed a dirty carpet on her before her body was transported to the Coroner's Office. Later that day, Ballew received a phone call from Jason Stroup, the owner of Digger Mortuary Services, informing her that contrary to what Kelly was told at the apartment, Digger Mortuary Services did have the appropriate equipment to transport remains of obese individuals.

On March 2, 2010, D.J. and Johnson, individually and as D.J.'s next friend, filed their Complaint against Appellees seeking damages for negligent and intentional infliction of emotional distress for their removal and transportation of Smith's remains. On July 22, 2010, on motion by Appellees, the trial court dismissed the claims brought by Johnson in his individual capacity. On May 16, 2011, D.J. moved for leave to file an amended complaint to add facts and to substitute the Indiana Department of Child Services as his next friend.¹ The trial court granted D.J.'s motion. On July 13, 2011, Appellees filed a motion for summary judgment asserting (1) immunity under the Indiana Tort Claims Act and (2) the absence of any independent evidence indicating negligent or intentional infliction of emotional distress.On September 16, 2011, D.J. filed his reply to Appellees' motion for summary judgment. On October 24, 2011, the trial court conducted a hearing on the motion. Four days later, on October 28, 2011, the trial court granted Appellees' motion, summarily ordering the dismissal of D.J.'s claims with prejudice.

D.J. now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Standard of Review

Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Ind. Trial Rule 56(C). In reviewing a trial court's ruling on summary judgment, this court stands in the shoes of the trial court, applying the same standards in deciding whether to affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley, 891 N.E.2d 604, 607 (Ind.Ct.App.2008), trans. denied. Thus, on appeal, we must determine whether there is a genuine issue of material fact and whether the trial court has correctly applied the law. Id. at 607–08. In doing so, we consider all of the designated evidence in the light most favorable to the non-moving party. Id. at 608. The party appealing the grant of summary judgment has the burden of persuading this court that the trial court's ruling was improper. Id. When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative defense that bars the plaintiff's claim. Id. Accordingly, the grant of summary judgment must be reversed if the record discloses an incorrect application of the law to the facts. Id.

We observe that in the present case, the trial court did not enter findings of fact and conclusions of law in support of its judgment. Special findings are not required in summary judgment proceedings and are not binding on appeal. Id. However, such findings offer this court valuable insight into the trial court's rationale for its review and facilitate appellate review. Id.

II. The Indiana Tort Claims Act

D.J. contends that the trial court improperly granted summary judgment to Appellees as it incorrectly determined that the Coroner's Office is immune to suit under the Indiana Tort Claims Act (ITCA).² D.J. maintains that because the transportation of Smith's remains did not amount to an enforcement of the statutory requirement that the Coroner's Office must investigate the cause of death of a person who has been found dead, the governmental agency's immunity did not come into play.

The ITCA was enacted after our supreme court in Campbell v. State, 259 Ind. 55, 284 N.E.2d 733 (1972) severely reduced the scope of the common law doctrine of sovereign immunity. See generally Peavler v. Bd. of Comm'rs of Monroe Co., 528 N.E.2d 40 (Ind.1988). In Campbell, our supreme...