Sekerez v. Gehring, 3-680A172
Decision Date | 30 April 1981 |
Docket Number | No. 3-680A172,3-680A172 |
Citation | 419 N.E.2d 1004 |
Parties | Gospava SEKEREZ, Administratrix of the Estate of Risto Sekerez, deceased, Appellant (Plaintiff below), v. Thomas A. GEHRING, Appellee (Defendant below). |
Court | Indiana Appellate Court |
Ronald L. Hoppes, Merrillville, for appellant.
Lester F. Murphy, Murphy, McAttee, Murphy & Costanza, East Chicago, for appellee.
This is a wrongful death action brought by Gospava Sekerez, administratrix and widow of Risto Sekerez who died allegedly due to the medical malpractice of Thomas Gehring, M.D. Her complaint was dismissed for failing to state a claim upon which relief can be granted.
We reverse.
On appeal Gospava has raised the following issues:
I. Whether plaintiff's Second Amended Complaint was sufficient to withstand a 12(B)(6) Motion to Dismiss.
II. Whether the court, after sustaining defendant's motion to dismiss, should have waited ten (10) days before entering judgment.
III. Whether the Court's sustaining of defendant's motion to dismiss without excluding extraneous material that was on file was a reversible error.
IV. Whether the court abused its discretion when it denied plaintiff's motion to correct a typographical error in the amended complaint.
Due to our resolution of the first issue, we find it unnecessary to address the remaining three.
for loss of society of her husband, and for her mental pain and anguish. The court did not rule on Gehring's motion to strike Count I for failing to state a "short and plain statement of the claim" in conformity with Ind. Rules of Procedure, Trial Rule 8(A)(1). On September 6, 1979, the court struck Count I for violating T.R. 8(A)(1) and gave Gospava four days to amend her complaint. On September 13, she sought and received permission to file her Second Amended Complaint.
"(27). As a proximate result of the aforementioned acts and/or inactions by the defendant, the decedent suffered physical pain and mental anguish.
(28). As a further proximate result of these acts and/or inactions, the decedent suffered injury to his health in general, and his blood, tissue, kidneys, and heart in particular.
(29). As a further proximate result of these acts and/or inactions, the injury suffered by the decedent greatly contributed to his wrongful death.
WHEREFORE, plaintiff prays judgment against defendant, for such sum as is reasonable, the costs of this action and such further relief as may be proper."
In response to this, Gehring filed a Motion to Dismiss under T.R. 12(B)(6) arguing Indiana law does not allow recovery for pain and suffering of a decedent as sought by paragraph 27, does not allow recovery for personal injury of a decedent sought by paragraph 28, and only allows recovery in wrongful death actions "if the actions attributed to the defendant caused or proximately caused the decedent's death," and not when the "injury suffered by the decedent greatly contributed to his wrongful death," as stated in paragraph 29. Thirteen days later Gospava filed a Motion for Leave of Court to Correct Typographical Error in Paragraph Twenty-Nine of Plaintiff's Second Amended Complaint. She sought to change paragraph 29, to, "The aforementioned acts and omissions were the proximate cause of the decedent's wrongful death."
Three days later, after a hearing on these motions, the court made the following entry.
"And now this matter is before the Court on this 4th day of October, 1979 on the Motion to Dismiss, filed by Dr. Thomas A. Gehring, pursuant to Trial Rule (B)(6). (sic)
Argument of counsel is heard and it appears to the Court that the plaintiff's Second Amended Complaint fails to state a claim upon which relief can be granted for the reason that as a matter of (sic) no recovery can be had for pain and suffering of the decedent, and no action for personal injury of the decedent survives his death so as to allow the plaintiff herein to recover.
Further, the plaintiff is entitled to recover in an action of this type only if the action of the defendant was the proximate cause of the decedent's death and not because the "injury suffered by the decedent greatly contributed to his wrongful death"; and for the above reasons the Motion to Dismiss the Amended Complaint should be sustained.
And now the Court considers the motion of the plaintiff to correct a typographical error in paragraph 29 of the plaintiff's Second Amended Complaint.
Argument is heard and it appears to the Court that the motion of the plaintiff for leave to correct a typographical error should be denied for the reason that the plaintiff has failed to show good and proper cause to amend her Second Amended Complaint.
We agree with the trial court that no recovery can be had for pain and suffering of the decedent, Pittsburgh, C., C. & St.L.Ry.Co. v. Brown, (1912) 178 Ind. 11, 97 N.E 145 and that no action for personal injury of the decedent survives his death 1 and that the actions of the defendant must proximately cause the decedent's death but it is our opinion the Second Amended Complaint sufficiently alleges proximate cause despite the omission of those exact words. For this reason we believe the trial court erred in granting the Motion to Dismiss. 2
In reviewing the sufficiency of a complaint Parker v. State, (1980) Ind.App., 400 N.E.2d 796, 798.
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In re Aircrash Disaster near Roselawn, Ind.
...Indiana does not permit recovery for decedents' personal injuries, including pre-impact mental distress. See Sekerez v. Gehring, 419 N.E.2d 1004, 1007 (Ind.Ct.App.1981); Ind.Code § 34-1-1-1 (under Indiana law, a decedent cannot bring a claim for personal injuries that caused his By contrast......
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Field v. Area Plan Commission of Grant County, Ind.
...plaintiff and with every intendment regarded in his favor, the complaint is sufficient to constitute any valid claim." Sekerez v. Gehring (1981) Ind.App., 419 N.E.2d 1004, quoting Parker v. State (1980) Ind.App., 400 N.E.2d 796, "(I)n a typical 12(B)(6) situation, a complaint is not subject......
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Dowell v. State
...of preferring to decide cases on their merits rather than dismiss them because of harmless timing failures. See, Sekerez v. Gehring (1981), Ind.App., 419 N.E.2d 1004, 1008. Because his motion was put in the mail prior to the filing deadline, Baker's motion to correct errors was erroneously ......
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...(1973) 260 Ind. 228, 294 N.E.2d 604; Field v. Area Plan Commission of Grant County, (1981) Ind.App., 421 N.E.2d 1132; Sekerez v. Gehring, (1981) Ind.App., 419 N.E.2d 1004. A motion for more definite statement has been specifically upheld when it is not apparent from the face of the complain......
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...(25.) No. 95-C-4593, 1996 WL 685445 (N.D. Ill. Nov. 22, 1996). (26.) 926 F.Supp. 736 (N.D. Ill. 1996). (27.) Sekerez v. Gehring, 419 N.E.2d 1004, 1007 (Ind.App. (28.) 923 F.2d 957, 960 (2d Cir. 1991). (29.) 976 F.2d 561, 564 (9th Cir. 1992). (30.) 286 N.E.2d 454 (N.Y. 1972). (31.) Eire R.R.......