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03/09/89 Dorothy Koeller, v. Cook County Et Al.

March 9, 1989

DOROTHY KOELLER, PLAINTIFF-APPELLANT

v.

COOK COUNTY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

535 N.E.2d 1118, 180 Ill. App. 3d 425, 129 Ill. Dec. 353 1989.IL.302

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. JIGANTI, P.J., and LINN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Plaintiff, Dorothy Koeller, appeals from summary judgment for defendants, Cook County (the County) and the Cook County deputy chief medical examiner, Dr. Edmund Donoghue, in an action seeking recovery for mental anguish she suffered as a result of the allegedly negligent, reckless and wilful and wanton acts and omissions of defendants in their handling of the body of her deceased brother, David Koeller. The remaining named defendant, the City of Chicago, is not a party to this appeal. We affirm.

Twenty people, including plaintiff's brother, David Koeller, died as the result of a fire in an apartment building at 5523 N. Kenmore Avenue in Chicago on March 14, 1981. The bodies of the victims were transported to the Cook County medical examiner's office by members of the Chicago police department. A body assigned the number 81 -- 323 was tentatively identified in a police report as being that of "Donald Koelleck," which was the name on a prescription medicine vial found in a pocket of the deceased's clothing. The police officers who transported the body to the morgue showed the vial to a morgue attendant and then placed it in the body bag containing body 81 -- 323. Dr. Donoghue did not see or request access to the police report to aid in the identifications of any of the fire victims, nor did he know about or ever receive the vial mentioned in the report which, apparently, was lost. He was, however, in possession of a list of the names of the tenants of the apartment building. Although body 81 -- 323 was partially burned, including mild burning over the face, the burning was not severe enough to interfere with visual identification or fingerprinting.

An investigator from the medical examiner's office contacted the Koeller family two days after the fire to inform them that it appeared from the tenant list that a person named David or Donald Koeller may have been one of the victims of the fire. However, a few days later, the investigator telephoned Daniel Koeller, a brother of the plaintiff and the deceased, and told Daniel that "they didn't believe it was David."

On March 16, 1981, a security guard who in 1980 had shot Donald Koeller, David's twin brother, viewed body 81 -- 323 and stated that it was not that of Donald Koeller. This Conclusion was consistent with the physical examination of the body, which revealed no gunshot wounds.

On March 15, Ronald Zimney received a call from a friend who reported to him that his brother, Lee Zimney, had been in the apartment building on the night of the fire. On March 18, Ronald and his wife, Gail, looked at photographs and television monitor films of the four yet-unidentified victims. Ronald and Gail both agreed that body 81 -- 323 was that of Lee Zimney. Gail also viewed the body and stated that although the burns made identification difficult, she believed, from the size, build and facial features, that it was the body of her brother-in-law. The Zimneys also supplied Dr. Donoghue with a description of Lee Zimney and his dental records. Dr. Donoghue compared Lee Zimney's dental X rays with those taken of body 81 -- 323 and found them to be similar. Later that same day, after being informed of the Zimneys' identification of the body, Dr. Pavlik, chief of forensic odontology at the medical examiner's officer, also made a comparison of the X rays and concurred with Dr. Donoghue's preliminary finding that they matched.

On the basis of the Zimneys' identification of the body as being that of Lee Zimney and the similarities in the dental X rays, as well as the lack of any conflicting identification evidence -- such as fingerprints, the taking of which is normally the responsibility of the police, or any personal effects found on or with the deceased -- Dr. Donoghue authorized the release of the body to the Zimneys. The body was cremated and interred on March 19, 1981, by the Zimney family.

Almost one year later, the police report tentatively identifying body 81 -- 323 as "Donald Koelleck" on the basis of the medicine vial was brought to the attention of Dr. Donoghue. Plaintiff was contacted and thereafter came to the medical examiner's office to view photographs of all the victims of the fire. She identified the photograph of body 81 -- 323 as being that of her brother, David Koeller. After further examination by a second forensic odontologist, it was determined that the dental X rays of body 81 -- 323 did not match those of Lee Zimney. Dr. Donoghue also contacted the Zimneys to inform them of the misidentification. After a reexamination of the photographs she viewed in March 1981, Gail Zimney still believed the photograph of body 81 -- 323 to be that of Lee Zimney. In March 1982, the remains of David Koeller were exhumed and given to the Koeller family.

On June 28, 1982, plaintiff filed a three-count complaint against defendants. In her complaint, as subsequently amended, plaintiff alleged that defendants had negligently, recklessly and wilfully and wantonly failed to make a proper identification of the body of her brother; failed to take all steps necessary to keep and maintain the body in a condition suitable for a proper burial; failed to deliver the body to her in substantially the same condition it had been received; failed to do whatever was necessary to insure that the body would be maintained in as good a condition as it was when received; failed to deliver the body to her despite her repeated requests for it; denied her the opportunity to make a positive identification of the body; interfered with her efforts to arrange a proper and decent burial of the body; and allowed her brother's misidentified body to be cremated against her wishes. The complaint further alleged that she suffered extreme mental anguish as a proximate result of defendants' acts and omissions in the handling and Disposition of her brother's body.

Defendants filed a motion to dismiss plaintiff's complaint on the ground that on March 25, 1982, plaintiff's father, David's next of kin, had signed a release holding defendants harmless for any damages arising from the misidentification, incorrect release and cremation of David Koeller's body. In response thereto, plaintiff argued that the release had been procured by fraud and coercion while her father was under severe duress; that the fraudulently obtained release did not bind David's estate or other family members; that she had since been appointed ...


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