Illinois Appellate Court Upholds Dismissal of Personal Injury Claim Involving Failure to Dispose of Fetal Remains

When it comes to personal injury law, there are many different kinds of conduct and harm that render a victim eligible for compensation. As experienced and knowledgeable Illinois personal injury lawyers, we have handled a wide variety of cases including unique and complex types of injuries. In a recent case, the plaintiff gave birth to a daughter who was stillborn. The plaintiff signed a form provided by the hospital authorizing it to dispose of the daughter’s remains. The plaintiff alleged in her complaint that the defendant’s employees told her verbally that the daughter would be buried in a short period of time. Roughly one year later, the plaintiff learned that her daughter’s remains were still in a cooler at a morgue facility that the defendant operated. She also learned that the remains were in a container that contained many other fetal remains.

In her complaint, the plaintiff also contended that the defendant voluntarily undertook burial of the deceased baby and that this created a duty to provide the child with a timely burial as promised. The plaintiff alleged that the defendant breached this duty by failing to make arrangements for the burial, by placing the baby’s remains in a container with multiple other fetal remains, by failing to report the baby’s death to the local registrar, by using the wrong burial consent form, and by failing to maintain or to follow any appropriate burial protocols. Finally, the plaintiff alleged that the defendant was negligent in supervising and monitoring its employees.

As for damages, the plaintiff alleged that she suffered severe emotional distress and depression as well as incurring burial and autopsy fees.

The defendant ultimately filed a motion to dismiss the plaintiff’s negligence claims, mainly indicating that it did not guarantee a timeline as to when the burial would take place. The defendant also raised a number of defenses, including failure to mitigate, waiver by contract, abandonment, consent, and assumption of the risk. The defendant alleged that the plaintiff could not show that the defendant owed her a duty and breached that duty and that she suffered damages as a result. The lower court ruled in favor of the defendants, finding that even if the plaintiff could show that the defendant voluntarily undertook burial of the fetus, the defendant could show that it was taking steps to fulfill that duty.

On review, the appellate court concluded that the lower court did not err in dismissing the action. It noted instead that the appropriate theory for recovery would have been a claim for interference with possession of remains, which the plaintiff had inexplicably abandoned earlier in the litigation.

If you have suffered harm as a result of another person’s negligence or lack of care, you may have a claim for damages. Our skilled team of personal injury attorneys has experience dealing with a wide variety of situations and injuries. We provide a free consultation to help you learn about whether you are entitled to compensation and how we may be able to assist you. Call us now at 773-545-8849 or contact us online.

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