Jurisprudence - (created spring 2024)

Basis for study: Hawke, Adam v. Murray

"the legal maxim that every person is presumed to know the law has expressly applied to funeral director"

to gain sufficient knowledge to act.

Law definition

the rules of civil conduct commanding what is right and prohibiting what is wrong.

Mortuary law (funeral law)

BROAD: mortuary service in relation to the law

MORTUARY SERVICE: the science or art of disposing of the death.

Law of Admirality

Law of the Sea

Talmudic Law (law of Moses) (Pentateuch)

Jewish law

5 books in old testement

-Genesis (beginning)

-Exodus (exit) (10 commandments here)

-Leviticus (law)

-Numbers (census, statistics)

-Deuteronomy (the review of everything) (10 commandments also here)

(Great Evil Lives Next to Denny's)

What are the different methods of disposition (listed in the maroon Mortuary law book)

i. ground burial

ii. entombment

iii. Cremation

iv. Burial at sea

v. anatomical donation

quasi-property rights

Bundle of rights given to the NOK

1. right to disposition

2. right to the use of the body parts

3. right to exclude other from possession/dispose

Roman Law

from beginning of time up until the fall of the roman empire

city planning

format of cemeteries (section, block, lots, plots, etc.)

NOT ROMAN CATHOLIC, just Roman Empire

Cannon Law

catholic church law decreed by the pope !

LITURGICAL WORSHIP! the pope writes the agenda for all the Sundays.

(cannon pope lore)

Napoleonic Law

French law from the time of Napoleon.

above ground burials, use of mausoleums, weird secret chamber underneath the mausoleum that serves as a community grave.

Anglo-Saxon Law

ENGLISH LAW

- common law

the basis for most American law

10 Commandments + Golden Rule

Golden rule: treat others as you want to be treated.

10 Commandments:

Thou shall have no other gods before me.

Thou shalt not make unto thee any graven images.

Thou shalt not take the name of the Lord thy God in vain.

Remember the Sabbath day and keep it Holy.

Honor your father and mother.

Thou shalt not murder.

Thou shalt not commit adultery.

Thou shalt not steal.

Thou shall not bear false witness against your neighbor.

Thou shall not covet your neighbor.

checklist: Dead Human Body

- body of a human being

- without life?

- Not yet fully disintegrated

Thomas v. Anderson

defined end of life:

life ends when heart stops and respiration stops.

Lovats v. District Court

defined that brain dead is dead: an individual has sustained irreversible cessation of all functionating of the brain, including the brain stem is dead.

English Law

- the body was in control of the church.

- no one had property rights of the dead.

Secular Times (non-religious)

the body of the deceased was no longer in possession of the church- instead in possession of the family.

-established NOK, quasi-property, and bundle of rights

Brotherton v. Cleveland

there is a legal bundle of rights in an object rather than the object itself.

- right to possess, use, exclude, profit and dispose

Rights of the body include

-respect of the body

-no abuse of corpse

rules of cremation

-written authorization of NOK

-Identification prior to cremation process

-remove pacemaker

scattering cremated remains rules

-must be 3 nautical miles away from shore

-the family must ask permission from the area they wish to scatter

Burial at sea rules

-weighted casket (150 lbs)

-EPA regulations

-must have holes in casket for fish

-3 nautical miles from shoreline

Anatomical Donation

-whole body donation

-must be at recognized institution

-can be done at-need or in advance

Rights of Custody

-the right of custody is not absolute

-specific purpose

-subject to revocation

-disposing of the body in the proper manner

Right to control the Funeral

-power to exercise control over all matters

-funeral or no funeral

-service or no service

-not compelled to share the rights with others

Actual Possession

the body is physically within the custody of the NOK

Constructive Posession

-the body is physically in the custody of another

(hostpital/mortuary)

Rights of the NOK

-Right of custody

-right to control the funeral

-right to choose disposition

Funeral Contract

contract between FD and Competent party

-oral or written (express)

-includes disclosures

Funeral contract includes

1) itemization

2) cash transaction

3) late charges

4) collection fees

5) late charges

6) joint and several (individual) liability

paramount rights

the right to control the disposition of the deceased

general rule for who is the NOK

Surviving spouse, if no spouse- then children, parent, brothers, sisters, grandchildren, etc...

Factors affecting the general rule

Wishes of Decedent, Special Relationship, Waiver

Statutory Exceptions (written laws of state)

wishes of the decedent, power of attorney, the surviving spouse.

Anatomical Gift- who can choose anatomical donation

-any individual of sound mind and legal age may donate

-in a will

-other than a will

-next of kin

in case of conflicts between family members

the director will not undertake any disposition until the parties have come to a settlement.

Duties of the Funeral Director

Statutory Duties, Contractual Duties

Death Certificates

must be given to local registrar within 10 days after DOD.

Report of Death

to local registrar within 24 hours

Disclaimer of Warrenties

casket and other items provided by the funeral home will serve their purpose. If the family buys elsewhere, then the funeral home is not liable.

Texas Funeral Service Commission

laws on transportation and rules on embalming and funeral directing.

Negligent Embalming

reasonably prudent and careful person skilled in embalming does a lazy/bad job!

Negligent Funeral Directing

failure to perform many duties involved in directing the funeral services.

funeral must stay until

Casket is completely lowered and covered in dirt!

contract is completed when the casket is buried.

24 hour rule

within 24 hours you must make sure the body is either embalmed or refrigerated

Contractual Obligations

Privacy of the body, safeguarding the body, provide non-defective merchandise, Transportation, and Aftercare.

safeguard the body

reasonably precautions (Like locks) are used at the Funeral Home to protect the body.

Privacy of the Body

we are obligated to keep privacy in the arrangement room and the prep room. no photos and no unwanted people.

Transportation

- the driver is an agent of the funeral home

-make sure they act right ?

Aftercare

it is not grief therapy, it is grief training - with a trained counselor, malpractice insurance.

Tort Liability

- Duty not to interfere with the right of burial

- Duty of exercising reasonable care

- To keep the funeral home premises reasonable safe

Can you hold a body for payment?

NO, silly goose - that's so very illegal.

What are some more things we're liable for?

- loss of the body

- mutilation of a body

- Injury to invitees

- injury to pallbearers and clergy

- intentional infliction of mental anguish

Intentional infliction of Mental Anguish

when the conduct is intentional, wrongful, outrageous, reckless, or malicious.

Who will pay for the funeral service?

1) estate of the decedent

2) surviving spouse

3) child

3) parent

4) any person authorized

5) lastly the county.

Primary Obligor

has the most jurisdiction and is the one who is generally supposed to pay the bill. (i.e. the surving spouse)

Probate Court

a court having jurisdiction over estates!!!

court that handles individuals' estates and proves authenticity of testator's will

Common Law Rule

husband and father are primarily liable to pay the funeral expenses of the wife and dependent children.

no rule that wife must pay for the husband. husband must pay wife.

if there's a will and someone is appointed to handle a persons estate:

Executor/Executrix

if there isn't a will - and someone is appointed by the judge to handle a person's estate:

Administrator/Administratrix

indigent burial fund

when the state must intervene to handle body disposal if no money or people available

Why do people choose cremation now?

1) growing acceptance

2) influx of immigration

3) higher level of education

positive Identification

Determining who a person is without a reasonable doubt or suspicion. (for cremation generally)

Written Authorization for cremation!!!!

should be signed by person with primary rights of disposition!!!

Informed Consent

the ones authorizing cremations should be told enough to enable them to choose whether they wish to participate.

can you comingle cremains?

No!! One body at a time!

when using the retort - is comingling of cremains inevitable?

yes! particles of cremains are everywhere.

How long do we have to hold cremated remains

120 days!

USPS

the only way to ship cremated remains!!!

Exhumation

judge orders for a body to be disinterred for a case.

plot -> Medical Examiner -> back to plot (NEEDS A COURT ORDER)

Disinterment

removal of a body from the original place of repose, can be ordered by family and has to be approved by the state if between cemeteries.

2 Types

Disinterment Disfavored

Disinterment is not a Right!!!

a court will not allow the body to be disinterred unless:

- strong argument showing it is necessary

- the pursuit of justice requires it

Disinterment Types

either moving plots in a single cemetery (NO PERMIT)

or moving between different cemeteries (PERMIT FROM STATE)

Anytime you have a dead body in the hearse you must have:

Burial Transit permit!!!!!

Funeral Home Definition

fixed place for the conducting of funerals and/or care and preparation of the dead prior to disposition

Nuisance

unnatural use of one's property so that it disturbs the peace

its difficult to establish a funeral home in a ____________ area.

Residential

Americans with Disabilities Act (ADA)

to provide individuals with full use and enjoyment of public accommodations. January 1993.

How much can the ADA fine for a first Offense??

50,000

How much can the ADA fine for any SUBSEQUENT offenses?

100,000

Property

Anything that may be owned

What does the law protect regarding property?

-The right to own property

-The Right to use property

Personal Property

Moveable items that can be owned

Tangible property

property that can be seen, touched, and owned

Intangible property

Property that cannot be seen or touched but exists only conceptually, such as IDEAS

purchase

buyer pays the seller and the seller transfers property to the buyer

Will

someone dies and leaves a written statement on how they want their property conveyed (distributed out)

Gift

Transfer made WITHOUT CONSIDERATION in return

Donor

the person who makes a gift

Donee

A person who receives a gift.

Bailment

transfer of possession of a personal property but not the title

(Like borrowing)

-the bailor is the one that lends out the item

-the bailee is the one who borrows it

Constructive Bailment

bailment imposed by law as opposed to one created by contract, whereby the bailee must preserve the property and redeliver it to the owner

(the example was a lost wallet)

Bailments for the sole benefit of the Bailee

the person receiving the item benefits but not the person lending the item.

ex) I lend you my car for a week for free.

Bailee: gets to borrow the car

Bailor: gets nothing

Bailments for the sole benefit of the Bailor

The person lending the item benefits but not the person borrowing the item.

ex) I give you my dog to pet sit for free

Bailor: gets a free pet sitting service

bailee: gets nothing in return.

Mutual benefit bailments

both parties benefit from the lending of an item

ex) you pay to borrow my pet shrimps to impress a cute girl

Bailor: gets paid

Bailee: gets to impress a cute girl with shrimps

Carriers

Transport goods, people, or both

- carrier transactions usually always create a mutual-benefit bailment.

Private carriers

-transport goods or persons for a fee

-may refuse service

- work on the customer's schedule

ex) moving truck,

uber

Common Carriers

transport goods or persons for ALL who request a certain service

-work on their own set schedule

ex) trains, airplanes, buses, subways

liabilities of common carriers

-acts of god (weather ig)

-acts of a public authority (police shut it down)

- Inherent nature of the goods

- acts of the shipper

- acts of a public enemy

Bill of Lading

a legal contract that defines responsibility for goods while they are in transit