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Ruling eases legal standard for emotional pain

Ruling eases legal standard for emotional pain

Former Valparaiso family has right to sue over disappearance of cremains

The state appellate court has ruled that a former Valparaiso family, which more recently had been living in Westville, has the right to sue for emotional distress caused over the disappearance of one of its member's cremains.

Last week's ruling sends part of the case back to Porter Superior Court Judge Jeffrey Thode and establishes a new state standard for filing lawsuits based on emotional pain, said the family's attorney, Harold Harper.

"It really recognizes the impact of emotional injury in Indiana," Harper said.

The lawsuit in question was filed in September 1999 by Phillip, Marcia and Michele Blackwell after they discovered the cremated remains of family member Phillip Alan Blackwell were not in the designated resting place within a mausoleum at Graceland Cemetery in Valparaiso.

The family claimed to have suffered "shock, overwhelming mental anguish, psychological injury and emotional trauma" in the suit filed against Graceland and Dykes Funeral Home.

The suit later was dismissed by Thode based on the state law at the time, which did not recognize emotional pain without physical harm or impact to the parties involved, Harper said.

The family appealed the case and the state court broke with the traditional interpretation of the law and agreed, at least in part, that the family was entitled to its day in court.

"While there was no physical impact, the Blackwells have alleged serious emotional trauma and it is of a kind that a reasonable person would experience," the ruling reads. "Provided they can prevail on their negligence claim, we see no reason why the Blackwells should not be able to claim damages for emotional distress."

The ruling only reopens the case against Dykes Funeral Home, Harper said. The case against Graceland was not sent back to Thode because the Blackwells presented no evidence that the cemetery ever took possession of the urn, the appellate court said.

Harper said the family will appeal the ruling involving Graceland to the Indiana Supreme Court.

Bob Kasarda can be reached at bkasarda@howpubs.com or (219) 462-5151, Ext. 345.

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